L'acquisizione della prova digitale nel processo civile

The contribution is aimed at providing the reader with an overview on the state of the art of Italian legislation on digital evidence with special regard to the issues inherent to searching for and collecting it in civil litigation. Despite the fact that the introduction and subsequent implementation of the new rules related to IT and telematic services in civil proceedings have been practiced in Italy for several years, a definition of digital evidence is still missing and no general rethinking has been so far attempted in order to modernise the evidentiary framework in a coherent and systematic manner. The electronic filing regulation and the scattered provisions concerning the probative force of electronic documents and DLT time stamps need therefore to be construed in line with the fundamental principles such as the right to bring evidence (corollary of the right of defence protected by art. 24 of the Italian Constitution) and the rule that the judge ought to decide according to the allegation and the proof (Iudex iuxta alligata et probata iudicare debet). The Italian system does not allow parties to ask the judicial authority to order any disclosure of information before the trial is pending: besides, after the action has been brought, the request to obtain the production of documents in the hands of the defendant or of a third party implies that the claimant pinpoints the specific documents sought, so there is no room for fishing expeditions. The judicial order of discovery (esibizione) is not then effectively enforced, except for proceedings relating to IP, competition law infringements and class actions. Litigants who expect to sue or to be sued before an Italian court have thus to gather the evidence they need mainly on their own, also through the use of new technologies, but objections of inadmissibility must be conveniently prevented. According to the majority opinion among judges possible violations of the GDPR principle on informed consent perpetrated during these private investigations do not entail the uselessness of the evidence gathered in a civil proceeding: parties have to be aware however that in certain cases they might expose themselves to criminal commitments or compensatory claims. As far as the collection of digital evidence is concerned, the set of rules laid out for the so called “PCT” (Processo Civile Telematico) is deficient and significant adjustments to the traditional application of the civil procedural code have to be envisioned in order to face the contestations that may arise before civil courts with respect to the evidentiary effects of electronic documents such as e-mails, contracts and digitally subscribed deeds, audio and video recordings, as well as to the possibility for the judge to inspect computers and other electronic devices or to search the web or other open sources. Sommario: 1. La nozione di prova digitale e l’evoluzione della disciplina sul suo utilizzo nel processo civile. – 2. Possibilità e limiti nel procacciamento di prove digitali in vista di una causa civile: spunti minimi in materia di discovery e di privacy. – 3. Le prove digitali nel processo civile telematico: acquisizione, efficacia e incidenti probatori in caso di contestazioni di falso.