On 14th February 2013, the NGO "Telefono Arcobaleno", which operates in the field of the protection of children's rights, denounced to the Public Prosecutor Office of Siracusa the existence of a website in which participants shared child pornography material. Investigations led to the identification of a virtual community, called "Foto di Preteen", and its subscribers. The Nucleo Investigativo Telematico (special department of the Public Prosecutor office which conducts investigations requiring digital expertise) acquired the IP codes of every user who accessed the website and through these it was possible to identify the participants of the online community. The Public Prosecutor also ordered house searches and the seizure of hardware and software contents alleged to be child abuse photos.
Defendants C. M., D. M., M. S. and S. G. were all suspected, together with other users not yet entirely identified, of being part of an organized criminal group aimed at sharing, distributing and obtaining child pornography contents online. Moreover, investigations highlighted the structure and the modus operandi of the online community. The creator and the promoter of the website was C. M., who called himself "the master" ("il padrone"). Through a message that precedes the access to the website's homepage, he warned the new users about the contents of the online community and listed the rules for being a permanent member of it. In order to view, download and upload the website's contents, they had to make a subscription, fill in a form and create a nickname. The webmaster approved new subscriptions but could also remove subscribers who did not comply with the website's rules. In fact, subscribers had to upload new contents regularly or they would have been banned from the online community. Shortly after the arrest, C. M. confessed to his crimes and the illegal network was dismantled.
The Court concluded for the existence of an organized criminal group (associazione per delinquere, art. 416 of the Italian criminal code) operating online and aiming at the commission of online child abuse crimes' related.
The Court convicted C.M. for participating to the organized criminal group as the promoter and creator (art. 416) and for distributing child pornography material online (art. 600 ter comma III of the Italian criminal code).
The Court convicted D. M. and M. S. for obtaining child pornography material online (art. 600 quater of the Italian criminal code). The Court considered proved their participation in the criminal group, but they could not be convicted because of the Statute of limitation.
The Court absolved S. G. of all charges (articles 416 and 600 quarter of the Italian criminal code) because is conduct of accessing for a very short period of time the website without downloading or uploading is not sufficient to prove his guilty.
The Court convicted the defendant for the above offences because it was found child abuse material on his computer and it was largely proven by electronic evidences that he created the website and managed it. He also confessed to his crimes.
The Court considered the defendant guilty because he was a subscriber of the website and the duration of his participation in the website was long enough to gain him a material benefit. Moreover, child abuse material identical to the one present on the website was found on his computer.
The Court considered the defendant guilty because he was a subscriber of the website and the duration of his participation in the website was long enough to gain him a material benefit. Moreover, child abuse material identical to the one present on the website was found on his computer.
The Court absolved S. G. of all charges because it was not found on his computer any material identical or similar to the one present on the website. Moreover, even if he subscribed to the website, his short time participation in it without downloading or uploading any kind of illegal material is not sufficient to prove his guilty.
Art. 416 Italian Criminal Code
Distributing child pornography material online
Court of Siracusa (Tribunale ordinario di Siracusa, sezione penale)
This decision represents one of the first application of the unlawful association (art. 416 criminal code, “associazione per delinquere”) to criminal groups operating online. It allows to assess if the legal definition of organized crime can embody and tackle this new form of online criminality in the Italian legal system. The case offers also the opportunity to distinguish different degrees of participation in an online organized crime group.
The elements of the unlawful association are: 1) the existence of a bond between at least three persons which shall not be short term or occasional; 2) the existence of a criminal plan which constitutes the aim of the organization; 3) the existence of an organizational structure, with a minimum degree of sophistication, that allows to carry out the criminal plan. Traditionally, this norm has been used to punish criminal groups operating in the physical world and now it faces a new challenge with the rise of new criminal groups online. The Court states that the interactions which take place in the virtual world do not constitute per se an obstacle to the creation of a criminal organization. In this case, the Court identifies all the elements of the unlawful association. The website allowed different persons to cooperate for a period of time and the law does not require that all participants know each other, in fact the mens rea of the single participant requires only that he/she is aware and wants to participate with at least other two persons to an organized group aimed at the commission of crimes. The website had a defined structure with a webmaster who represents the leader of the criminal association with all the subscribers under his law. There were strict rules that regulate the life of the organization, for example the ones concerning the joining to the community or the ones which punish who do not respect them. The organization allowed perfectly to pursuit the objectives of the organization: through the website was possible to obtain and distribute child pornography contents. Furthermore, the Court acknowledges that the nature of websites made it easier to prove the existence of the criminal organization. Usually, traditional criminal groups do not have statutes and the collection of evidence is conducted in an indirect way with investigations focusing mostly on the crimes committed, the modus operandi of the group and the interactions between members. On the contrary, in this case, the webmaster produces an immediate evidence of the existence of the criminal organization, listing the rules, conditions, aims and the inner roles of the organization to the new members.
This case shows not only that the legal definition of organized crime can be applied to online crime groups, but also that this new phenomenon seems to be easier to tackle through the application of the unlawful association. Paradoxically, the new form of those criminal organizations seems better designed for the “old” offence of the unlawful association than traditional organized crime groups.
The case also highlights different degrees of participation in the criminal group which is interesting to analyse because they take form in the virtual world.
Participation with uploading and downloading activities:
The Court convicted defendant C. M. for being the creator and the promoter of the criminal group. His leading activity on the website is highlighted by his role of webmaster which allowed him to authorize the subscription of new members and to expelled the ones who did not comply with the website's rules. Electronic evidences also showcased that he had created the website establishing its rules. His role into the online community was very active considering the upload and the download of several illegal files.
Participation without uploading activities:
The Court considered proved the participation of defendants D. M. and M. S. in the criminal group, even though they did not upload any illegal material on the website (they just made downloads). Regarding the mens rea, when D. M. and M. S. subscribed to the website they received all the informations about its aims and rules. They knew they were part of a criminal group aimed at the distribution and sharing of child pornography content. Their subscription also highlights their willingness to be part of that criminal association. Regarding the actus reus, the defendants did not need to upload material to be incriminated for the unlawful association offence. According to the Court, the upload of illegal material represents just a condition for remaining a member of the organization not for becoming a member. The Court states that even a short time membership to the website allows the member to gain material benefits: who enters to the website has the chance to watch its contents. Eventually, the Court considered their subscription, their status of members for a period of time, the view and the download of the website's contents as proves of their participation in the criminal association.
Very short time participation without any kind of activity:
Defendant S. G. after he had subscribed to the website he visited it just for 20 minutes without uploading or downloading anything. There is also no proof that he actually viewed the website's contents. Even if he subscribed to the website, the Court states that his very short participation in the website and, the lack of activity in the online community is not sufficient to prove his guilty.