This is the opinion of the 3^rd Chamber of the Criminal Supreme Court (decision n. 48175 of October 19^th 2017) in relation to the subjective element required for the crime of possession of pornographic material realized through the sexual exploitation of minors.

The diffusion of the internet together with the proliferation of file sharing, consenting to share files among users through the usage of a common server, contributed significantly to the growth of the unlawful phenomenon of child pornography.

The Legislator with law n. 38 of February 6^th 2006 operated a change to the former regulation of the crime at hand. More specifically, the aforementioned reform introduced an explicit reference to the conduct of “possessing” which also substitutes the other of “making use of” pornographic material. Such changes were oriented to the aim of including in the crime of art. 600 quater c.p., the possess of not only physical materials, such as printed photographs, but also the possess of Cd-Rom, USB flash drives, Micro-Sd and hard disks of Personal Computers; accordingly, the notion of possess also relates to pictures taken from the internet or more generally saved into computers.

In relation to the specific case brought to the attention of the Court, the defendant, who stored several pornographic files about minors, appealed to the Supreme Court on the ground that the lower court decision left out any investigation about the effective existence of any malice in the activities of downloading, saving, transferring and making the backup of the files since from the result of the expert witness text did highlight neither relevant search strings nor relevant keywords on the e-Mule software.

The Criminal Supreme Court rejected the appeal by underlining that the mere existence of the files on different hardware supports – basket included-, was a conduct which was susceptible of proving that the defendant was aware of the offence deriving from his actions.

In this regard, the Court noticed that: “the activity of moving files to diverse hard wares […] is in contrast with the thesis of unaware storage since it is clear that such activity requires a direct action by the author who, consequently, demonstrates to have a conscious dominion of his conduct. Moreover, it is reasonable to believe that such operations also require a selection of the materials, part of which may even be put into the basket. This is even more likely if the material in discourse has child pornographic nature.”

According to the aforementioned reasoning the panel of judges concluded that the exceptions raised by the defendant was not relevant since, with regard to the malice required by the law, no importance can be acknowledged to the fact that a person watches or not the file content when the subjective element of the crime results from other aspects such as the file name or its source.