General conditions in contracts in Italy
(By Associazione Consumatori Piemonte )

FRAUD IN MEANS OF PAYMENT, BANK CARDS, E-COMMERCE AND PAYMENT BY PORTABLE TELEPHONE.

Premessa.
In the last 30 years, all new means of communication (above all, the Internet) have produced new means of commerce and payment. These mainly computer-based means have set new problems of safety, related to the new kinds of crimes committed on the Internet.
In dealing with these crimes, traditional legal means have proven non-effective. That is the reason why Italian lawmakers laid a new regulation concerning computer-based criminal facts.

1. E-commerce as a foundamental application of new computer technologies

As E-commerce can be seen as the most relevant application of competer science as to buying and selling, this is also the matter which sets the heaviest legal problems.
In Italy, eletronic payments have been dealt with by art. 14 of Legislative Decree 513/1997. This extends to e-commerce the rules concerning digital signature. But such a solution doesn’t seem to take into the due account the law economic level of most transactions made through e-commerce, which doesn’t justify the complex policies linked to the use of the digital signature.
By the way, most of payments on the Internet take place through credit cards, smart cards, or electronic money.

2. Crimes committed by credit cards in Italy’s criminal systems. Special regulation by art. 12 D.L. 3-5-1991 N. 143

1991 marks the first intervention of Italy’s lawmakers as to computer crimes. This replaced the previous analogic interpretation of traditional criminals rules. The effectiveness of the new regulation has been seriously limited, for that Act is not specifically intented to this matter, which is included in some urgent provisions regarding money laundering and credit card abuses.
Art. 12 sets a specific punishment for credit card abuses, laying a €309 to €1549 fine.
In this rule, a basic element is an profit goal by those who committed the crime, while no actual economic advantage must have been reached. This makes the rules much easier, but lays some problems of coordination with other rules, notably in the Penal Code.

This reform introduced three different crimes:

1) Illegal using of credit or paying cards by different persons than the authorised ones, in order to obtain an economic profit for oneself or anyone else.

The author can be anyone, as no specific requirement is laid.
The victim can be either a person, or a company, or a credit card owner whosoever.
The conduct i san use of credit card, or any other kind of card issued by a subject running banking activity, which enables its holder to withdraw cash or make payments in other ways without any use of cash.
Using must be unlawful. Unlawfulness can consist in the lack of allowing by the owner, in the breaking of the rules concerning cards, and so on.
As the use of a cards lies upon a contractual basis, it has been maintained that any use thereof by anyone else than its owner is unlawful. On the other hand, such an interpretation would produce a criminal relevance of widely accepted uses, i.e. people being lent and using cards with a full awareness and agreement by their owner. This means that the relevant point is the relationship between user and owner.
This is a crime of abstract danger. It is made when the card is inserted into a dispenser, or handed over to a seller for paying purposes.
Another interpretation maintains that a full use of the card only takes place if the cash has been obtained, or the payment has been completed. But this interpretation does not seem to match the needs of wide and front-line protection against these kinds of abuses.
The crime exists even if the card has expired. Nevertheless, the use of an expired card by its owner does not produce the crime, because the reason for this rule is not the protection of a contractual relationship.
The action must be willing. The will must even be only “possible” – e.g., a doubt about being the card owner is compatible with the existence of the crime.

2) Forging or unlawfully modifying credit or paying cards, or possession, handing or selling of cards thus forged or unlawfully modified.

These are actually two different possible crimes, rolled into one by a heavily criticisable rule. The first crime belongs to crimes against public faith, while the second seems to match the scheme of money laundering.
Also this one is a crime committable by anyone.
The victim can be seen as society itself, as no specific victim seems to arise from holding an unlawfully modified credit card.
It is disputed whether the software side of a card (initialization, codes and so on) can be seen as a computer document. In this case, this conduct can be also punished by the rule about paper forging, which has recently been extended to computer documents having evidence efficacy. Anyway, even if this were maintained, the rule considered here would be prevalent as an effect of the “speciality principle”.
The action must be willing, under the same conditions as the previous crime.

3) Selling or giving stolen, forged or unlawfully modified credit or paying cards.

As for its interpretation, this is the most troublesome rule of these three ones. Maker can be anyone, as usual. Conduct is not needed to produce any kind of criminally relevant fact, as it is sufficient to produce the crime.
For this crime to exist, the card must have been stolen, or it must have reached the author through a voluntary criminal action intended thereto. So, when the author of the crime has received the card through a mistake of a mailing service, no crime of this kind can be committed.
When the seller or the giver is the same person who forged the card, the crime committed is not this one, but the previous one, as this action is the natural epilogue of the conduct depicted and punished under the other provision.

Relationships between the new rules, common fraud and computer fraud

a) Common fraud

The coexistence of common fraud and one of the aforesaid crime has largely been seen as possible as the two kinds of crimes seem to have different goals – patrimony on one side, money laundering or public faith on the other.
Nevertheless, it is easy to see that the different nature of the new crimes is maintained through their location in the regulation, and the alleged absence of a protection of patrimony in them. The first point can easily be passed by, as such a location does not look like a result of lawmakers’ analysis of the nature of the rule itself. As for the kind of protection by those rules, it would be very hard to say that they do not protect patrimony at all.
For these reasons, it is clear that fraud is involved in the provisions of the new crimes, and no one can be prosecuted under both provisions for one conduct depicted in the new crimes themselves.

b) Computer fraud

Also rules concerning computer fraud cannot punish the same conducts punished under the provisions of the new rules. The same purpose can be seen of adapting the concept of fraud to what can be done through a computer or means of payment related thereto.

3. Phone card frauds. The court extension thereto of the rules concernine credit cards

Several court decisions have extended credit card crimes to phone cards. Reasons for this are similarity in the way of working, as well as in the criminal actions which can be committed through such means.
Such an extensions covers both card that can be used to make calls with public phones, and cards sold to top up mobiles.