Digital evidence in Italian employment disputes:

Employment relationships increasingly take place outside company premises and outside the typical patterns of the production chain, through tools that employees use daily for private purposes: social networks, instant messaging chats, and personal smartphones.

When these same communications resurface in disciplinary proceedings or in an action challenging a dismissal, a procedural question of primary importance immediately arises: under what conditions may digital evidence be acquired and used in employment civil proceedings?

This question simultaneously involves the regime of admissibility of evidence, the prerequisites for its lawful acquisition, and the criteria for assessing its reliability within a regulatory framework that must balance the evidentiary needs of the parties with the protection of the worker’s fundamental rights to privacy and freedom of communication, as enshrined in Articles 2 and 15 of the Italian Constitution.*

The rules of admissibility: Public content and private chats

The first criterion affecting the admissibility of digital evidence in employment proceedings relates to the public or private nature of the content. The case law of the Court of Cassation clearly distinguishes between:

• Content published on an open social profile or on a wall accessible to an indeterminate circle of people; and
• Messages exchanged in a private conversation or in a closed group.

In the first case, the Court of Cassation (No. 10280/2018) has repeatedly held that publication on Facebook of an offensive comment about the employer company constitutes just cause for dismissal, as such conduct amounts to defamation and is capable of damaging the fiduciary relationship due to the capacity of the medium used to circulate the message to an unrestricted audience. In procedural terms, evidence of such conduct – typically a screenshot of the post – is fully admissible without the need for particular acquisition safeguards, precisely because the content was already publicly accessible.

The situation changes radically in terms of procedural admissibility in the second scenario, when criticism is expressed in a private chat or in a closed WhatsApp group. In a recent judgment (Labor and Social Security Section, No. 122/2025), the Court of Appeal of Ancona held that messages exchanged in a private WhatsApp chat between colleagues fall within confidential correspondence and are not admissible for disciplinary purposes. The case clarifies that messages exchanged in a private chat, even if containing offensive comments about an employer, not only do not constitute just cause for termination, but are also subject to a limitation on admissibility deriving from their classification as private correspondence, protected by Article 15 of the Constitution.

The rationale is clear: when a message is forwarded to one or more specified persons, instant messaging services must be considered correspondence for all purposes, with the consequence that their acquisition and production in proceedings are subject to the limits established for the protection of the secrecy of communications.

Audio recordings: Prerequisites for admissibility in civil proceedings

The recording of conversations by smartphone and subsequent production in proceedings represents one of the most sensitive aspects of digital evidence in employment proceedings. The Labor Section of the Court of Cassation, in judgment No. 28398/2022, established fundamental reference principles for determining the prerequisites for admissibility of this type of evidence.

First, the digital file recording of a conversation between persons present may constitute a source of evidence pursuant to Article 2712 of the Civil Code, which governs mechanical reproductions, if two conditions are met: at least one of the subjects between whom the conversation took place is a party to the case, and the person against whom the recording is produced does not effectively contest that the conversation actually took place or that its substance matches the recording. Any contestation, to be procedurally effective, must be clear and explicit, detailing specific discrepancies between the recording and the actual events.

The second aspect, of particular practical relevance, concerns the lawfulness of the acquisition of the recording and its consequences on procedural admissibility. The Court of Cassation has clarified that the conduct of recording conversations between an employee and his colleagues, carried out without the knowledge of the participants, does not in itself constitute a violation of the right to privacy such as to determine the inadmissibility of the evidence or to justify the dismissal of the worker who records, when the recording responds to the legitimate exercise of the right of defense. Article 24, paragraph 1, letter f), of Legislative Decree No. 196/2003 (now incorporated into Article 6, paragraph 1, letter f), of the GDPR) allows, in fact, dispensing with the consent of the data subject when the processing of data is necessary to assert or defend a right in judicial proceedings, provided that the data are processed exclusively for that purpose and for the strictly necessary period.

The court specified that the right of defense, as a prerequisite for the lawfulness of acquisition, is not limited to court proceedings in the strict sense, but extends to all those activities aimed at acquiring evidence admissible even before the dispute has been formally initiated. Consequently, recordings made by the worker to protect his position and to pre-constitute evidence, if pertinent to the defensive thesis and not exceeding the needs connected to the legitimate exercise of the right, are covered by the justification grounds of Article 51 of the Criminal Code and are fully admissible in employment civil proceedings. In the case decided by the Court of Cassation, the judgment on the merits was quashed precisely because the territorial court had not investigated the occurrence of such requirements, merely stating, in an apodictic manner, that the conversations had been “abusively, illegitimately intercepted and recorded,” without carrying out the necessary balancing of the fundamental rights at stake.

It should be noted that this principle operates differently depending on whether the person recording is the worker, for defensive purposes, or the employer, in the exercise of its control powers. When it is the company that collects telephone recordings or conversations for the purpose of monitoring employees, Article 4 of the Workers’ Statute applies, as discussed in the following paragraph, and the limits are considerably more stringent.

Article 4 of the Workers’ Statute: Limitations on the collection and admissibility of evidence

When it is the employer that collects digital evidence through technological tools, the limits on procedural admissibility are significantly more stringent. The relevant regulatory framework is Article 4 of Law No. 300/1970, as amended by the Jobs Act, which makes the lawfulness of remote monitoring of workers subject to compliance with specific procedural and substantive conditions, the violation of which determines the inadmissibility in civil proceedings of the information acquired.

The case law clearly distinguishes between controls concerning ordinary work activity, which must always comply with the procedures of union agreement or authorization from the Territorial Labor Inspectorate, and so-called defensive controls in the strict sense, aimed at ascertaining specific unlawful conduct attributable, on the basis of concrete evidence, to individual employees. However, even the latter are not without constraints: to be legitimate, defensive controls must be implemented only after a well-founded suspicion has arisen concerning the commission of an offense, and cannot result in preventive and continuous surveillance aimed at “discovering” any irregularities.

A recent case, concerning a company that had used telephone recordings to demonstrate the disloyalty of some former employees, illustrates the practical consequences of this principle: both the Court of First Instance and the Court of Appeal declared the evidence inadmissible because the monitoring had begun before the suspicion arose. The Court of Cassation (No. 7514/2026) confirmed this assessment, reiterating that what matters is the moment when the information was originally recorded and whether, at that precise moment, the legal prerequisites existed for doing so.

The procedural sanction for the violation of these limits is the inadmissibility of the material collected: evidence acquired in violation of the rules on the processing of personal data cannot be relied upon by the judge as the basis for the decision, pursuant to the combined provisions of Article 4, paragraph 3, of the Workers’ Statute and Article 2-decies of the Privacy Code. The practical consequence is that, in the case of dismissal for subjective reasons based on inadmissible evidence, the employer also risks being ordered to reinstate the employee on the grounds of non-existence of the contested fact.

This principle has also been affirmed with regard to workplace instant messaging services used for business communications, classified by the Court of Cassation as a work tool pursuant to Article 4, paragraph 2, of the Statute: information derived from such messaging services as a result of employer monitoring is inadmissible in the absence of the adequate prior notice required by paragraph 3 of Article 4 of the Statute. The case law has also highlighted that the employer cannot invoke the exercise of the right of defense to circumvent the limits of Article 4, as such an operation would nullify the protective rationale of the rule, which aims to protect the dignity and privacy of the worker even in the evidence acquisition phase.

The evidentiary value of digital evidence: Authenticity, genuineness, and the burden of repudiation

Having passed the admissibility test related to the lawfulness of acquisition, digital evidence raises a second order of procedural questions, relating to its intrinsic evidentiary value and the burden of repudiation on the party against whom it is submitted. Electronic reproductions, including emails, WhatsApp messages, and screenshots without digital signatures, are governed – like audio recordings – by Article 2712 of the Civil Code, and constitute full proof of the facts and matters represented, unless the party against whom they are produced expressly challenges their conformity to the facts.

Such challenges are considered a qualified repudiation, which the case law subjects to rigorous requirements: It is not sufficient to generically assert that the document is not authentic, but it is necessary to indicate concrete elements of discrepancy, alteration, or inconsistency between the data produced and the underlying facts, and to raise them promptly within the procedural time limits provided by the Code of Civil Procedure. In the absence of such a qualified repudiation, digital evidence retains full evidentiary effectiveness and the judge may rely on it as the basis for any decision.

However, the substantial reliability of any digital evidence depends on three cardinal technical requirements, as established by the ISO/IEC 27037 guidelines, namely authenticity, genuineness, and transparency:

• Authenticity relates to the correspondence between the acquired data and its actual origin, verifiable through metadata and system logs.
• Genuineness concerns the integrity of the content, i.e., the absence of accidental or intentional alterations.
• Transparency requires that the tools and methods used to acquire the evidence be disclosed, so as to allow an effective technical debate between the parties.

Precisely because computer data is by its nature volatile and easily modifiable, the correct application of acquisition methodology, according to computer forensics standards such as the creation of bit-stream copies verified through hash functions, is not a mere technical detail but the very condition for the evidence to withstand a procedural repudiation. The possible absence of such precautions, while not in itself determining the inadmissibility of the evidence, may be used by the opposing party to support their contestation and may lead the judge to deem unproven the very facts that the party had intended to prove.

For parties intending to use screenshots, chats, or recordings in disciplinary proceedings, this translates into a precise practical recommendation: preserve, where possible, the original files and related metadata, avoid even unintentional manipulations, and accurately document the acquisition methods, since it is precisely these elements upon which they will need to rely to resist any contestation by the opposing party during the proceedings.

Artificial intelligence: New challenges for the reliability and admissibility of digital evidence

Artificial intelligence presents an additional level of complexity which is set to significantly affect the rules of admissibility of digital evidence in the coming years. This is procedurally relevant from a dual perspective:

• The intrinsic reliability of digital evidence and the consequent assessment by the judge.
• The legality of any use of artificial intelligence tools in the management of employment relationships, including automatic transcription tools for video calls.

The first issue caused by the expanding use of AI relates to the growing challenges in assessing the genuineness of digital material, including due to the increased risk of manipulated or artificially generated content – so-called “deepfakes” – which make it increasingly difficult to distinguish authentic content from fabricated content. On the procedural level, this entails a raising of the burden of allegation and proof on the party intending to disavow a digital reproduction: A generic contestation will no longer be sufficient, but it will be necessary to allege specific elements that make the hypothesis of manipulation plausible.

Also with regard to linguistic and vocal evidence, experts point out that voice deepfakes are already capable of deceiving an inexperienced listener, although an advanced expert analysis can still identify traces of AI manipulation, provided that experts constantly update their skills.

The second aspect, which is more directly operational for companies, concerns the use of artificial intelligence tools as an aid in the management of employment relationships, such as automatic transcription tools for video calls, which are increasingly widespread in business practice.

When these tools are used for internal meetings involving employees, it is necessary first to verify whether the tool constitutes a remote monitoring device within the meaning of Article 4 of the Workers’ Statute: if so, an agreement with the company union representatives or, in the absence thereof, authorization from the Territorial Labor Inspectorate is required before any activation.

In addition, there is a need to regularize the relationship with the service provider through a data processing agreement, pursuant to Article 28 of the GDPR, and, when the processing is systematic or concerns a significant number of persons, to assess the obligation of a data protection impact assessment.

Since 2025, this framework has been enriched by Law No. 132/2025 on artificial intelligence, which introduces specific transparency obligations for content generated by AI systems, criminal sanctions for the unlawful use of artificial intelligence, and the principle of human-centric and non-discriminatory use, with a sanctions regime that complements the already stringent rules of the GDPR.

Conclusions: A systematic framework governing the rules of admissibility

The picture emerging from this analysis provides a systematic indication of the limits and margins of the admissibility of digital evidence in employment civil proceedings.

Admissibility depends on passing a double test. The first, relating to the lawfulness of acquisition, requires compliance with the rules established for the protection of the privacy and dignity of the worker, in particular Article 15 of the Constitution, Article 4 of the Workers’ Statute, and the rules on the processing of personal data. The second, relating to intrinsic evidentiary value, requires that the evidence present the requirements of authenticity, genuineness, and transparency suitable to withstand any contestation pursuant to Article 2712 of the Civil Code.

For employers, this translates into some operational guidelines of particular practical relevance. First, it is necessary to carefully distinguish between content published on open platforms, which is potentially sanctionable, and communications exchanged in confidential contexts, for which data collection and disciplinary actions remain strongly limited.

It is also essential that any technological control over employees, including any use of artificial intelligence tools for the transcription of meetings, is preceded by the necessary notification procedures and, where required, by the union agreement or administrative authorization provided for in Article 4 of the Workers’ Statute, to ensure the procedural admissibility of any material collected.

Finally, when intending to produce screenshots, chats, or recordings in proceedings, employers must take care to preserve the original files, metadata, and documentation relating to the acquisition methods. This is the best guarantee against procedural repudiation, particularly as the growing incidence of AI-manipulated content looks set to make challenges to the authenticity of digital evidence in employment civil proceedings increasingly frequent and articulate.

*Trainees Francesco Cannavina and Rachele Miotello also contributed to this article.