It is not a contractual fulfillment but a scam, an online job, “the sale of an asset on a website, accompanied by the non-delivery of the asset itself to the buyer, carried out by those who falsely present themselves as an alienator with the sole purpose of inducing the counterparty to pay a sum of money and therefore to obtain a profit “. To say it is the Second Section of the Cassation in n. 21932 of 22 July 2020. The decision, among other things, follows a previous ruling that with sentence of 20 December 2019 no. 51551 reached the same conclusions. Under the lens of jurisprudence, computer crimes involving criminal offenses committed “against” computer systems and those, as in the case of online scams, committed “by means” of telematics, are ending more and more.
According to the data provided by the Postal Police, in 2019 9,000 computer crimes were reported, 1,181 hacker attacks on the computer systems of companies and entities that represent “national strategic interests”, 91 sites and pages removed for cyber terrorism. In the statistical context of the phenomenon, the increase in minors reported for cyberbullying is significant.
As regards in particular the phenomenon of online scams, there is an increase in the number of complaints: over thirty thousand complaints in 2018 (more than 250 per 100,000 inhabitants) with a growth of over 50% compared to 2010 (first year of the phenomenon monitored by ‘Istat). Computer fraud by number of complaints exceeds car thefts. With regard to online scams, the Supreme Court (sentence no. 40045 of 6 September 2018) has established that the use of the network by scammers represents an aggravating circumstance of the crime. According to the judges: “On the subject of online fraud, the aggravating circumstance of the handicapped defense is configurable, with reference to the exploitation of the local conditions, only when the author has consciously and concretely drawn specific advantages from the use of the network tool “.
It clarifies even better sentence no. 17937 of section VI, of 10 April 2017:
in the fraud committed through the sale of products online – the Court ruled – “the aggravating circumstance referred to in art. 640, paragraph 2, n. 2-bis, Criminal Code, with reference to the place where the crime was committed, since the physical place of consummation of the fraud (identifiable in the place where the agent obtains the undue profit) in this case possesses the peculiar characteristic constituted by the distance that it with respect to the place where the buyer is, who, according to the typical practice of similar transactions, paid the price in advance of the product sold. Precisely this distance between the place of commission of the crime by the agent and the place where the buyer is located is the element that places the author of the scam in a position of strength and greater favor compared to the victim, allowing him to shield his identity, not to subject the sold product to any preventive control by the buyer and to escape comfortably from the consequences of the action: advantages, which he could not exploit in his favor, with equal ease, if the sale were to take place face to face “.