ITALY Trends and Developments Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
NIUS Legal and HR Solutions Via Cerva 18 20122 Milan Italy
Tel: +39 02 4547 3698 Email: info@niuslex.com Web: www.niuslex.com
Internal Company Investigations: Regulatory Framework, Application Profiles and Impact of Artificial Intelligence Artificial intelligence as a new power of control In the context of internal company investigations, AI does not represent a simple technological evolution of traditional investigative tools. Rather, it is configured as a new and autonomous power of control, capable of structurally affecting the balance between employer power and the fundamental rights of the worker. Unlike the technologies of the past, AI systems allow massive, continuous and potentially predictive analy - sis of individual behaviour, merging managerial power, organisational power and supervisory power into a single digital infrastructure. In this perspective, the internal investigation ceases to be an episodic, reac - tive and circumscribed event, being transformed into a permanent process of observation, selection and risk assessment. It is precisely this pervasive ability that makes AI legal - ly intriguing but also, potentially, problematic: on the one hand because it makes controls more efficient, on the other hand because it risks technologically circumventing the safeguards built over time by the Italian legislature, by domestic labour law and by the discipline of personal data protection. The European and national legislatures have grasped this criticality, qualifying the use of AI in employment relationships – particularly in monitoring, behavioural analysis and investigation activities – as a high-risk area, subject to enhanced obligations of transparency, explainability, preventative risk assessment and human control.
There is no doubt that this evolution cannot be real - istically opposed; on the contrary, it is necessary to embrace and understand it, in order to evolve. Cer - tainly, there is a need to identify a balanced point of synthesis between the inevitable technological progress and a complex system, such as that of work, which originates from categories and historical structures sometimes built on assumptions that are now outdated and no longer consistent with current dynamics. In this scenario, internal investigations become the privileged test of compatibility between technologi - cal innovation and the fundamental principles of the legal system. It is here that investigative efficiency is measured, in a direct and concrete way, with the legal - ity of the controls, the proportionality of the tools, the protection of the dignity of the worker and the effec - tiveness of the right of defence. Legal nature of internal investigations In the Italian legal system, internal company inves - tigations do not have an organic and self-sufficient discipline. Rather, they are located at the intersection of a plurality of heterogeneous sources – labour law, privacy law, criminal law and criminal procedure, cor - porate governance and compliance – which require the interpreter and the operator to read systematically and in a co-ordinated manner. The growing diffusion of internal investigations is directly proportional to the evolution of organisational models, the intensification of compliance obligations (pursuant to Legislative Decree 231/2001 in particular) and the strengthening of the mechanisms for reporting wrongdoing. In this context, the internal investigation
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