ITALY Trends and Developments Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
The key principles of UNI ISO 37008 include: • the independence and impartiality of the persons in charge; • the confidentiality of the information collected; • the multidisciplinary competence of the investiga - tive team; and • respect for legality and the fundamental rights of the people involved. In this perspective, the adoption of an Internal Investi - gation Policy represents an essential governance tool, suitable for defining roles, responsibilities, informa - tion flows and interactions with Model 231, as well as ensuring the consistency and predictability of inves - tigative actions. Investigative tools and legal limits Interviews and obligation to co-operate Interviewing employees is a central tool of the internal investigation. It is based on the obligation to co-oper - ate, deriving from the duties of diligence and loyalty, without prejudice to respect for the fundamental rights of the worker. In the presence of potentially relevant facts from a criminal point of view, the right not to incriminate one - self must be guaranteed. It follows the need to care - fully calibrate the methods of conducting interviews, also in order to preserve the usability of the informa - tion collected. Remote controls and defensive controls Article 4 of the Workers’ Statute continues to repre - sent the pivot of the discipline of technological con - trols. The tools from which remote control can derive are allowed only when organisational, production or safety needs occur, and are subject to union agree - ment or administrative authorisation. The case law has developed the category of so-called defensive controls, admitted by way of derogation only if activated ex post, in the presence of a well- founded suspicion of wrongdoing, and provided that they are not retroactive. It is also essential that the worker has been informed in advance of how to use the tools and of possible controls.
Private investigators The use of investigative agencies is legitimate within the limits outlined by the jurisprudence of legitimacy, provided that the activity does not result in control on the performance of the work, but is aimed at ascer - taining illegal conduct detrimental to the company’s assets in the broadest sense. Technology, digital forensics and internal investigations Modern internal investigations increasingly make use of digital forensics tools, understood as the identifica - tion, acquisition, preservation and analysis of com - puter data. The examination of emails, system logs, browsing histories and digital flows must take place in strict compliance with the principles of purpose, neces - sity, proportionality and transparency, as declined by the GDPR, by national jurisprudence and in line with the regulatory framework outlined by Article 4 of the Workers’ Statute, last amended in 2015. As is well known, the indiscriminate or exploratory collection of data is incompatible with the current regulatory framework and risks compromising both the legitimacy of the investigation and the usability of its results. Artificial intelligence as the new centre of gravity of corporate investigations It is in this context that technological evolution, and in particular the use of AI systems, is progressively redefining the perimeter and operating methods of internal company investigations. If, in the first phase, technological innovation was mainly translated into the use of digital forensics and traditional computer analysis tools, today AI introduces a paradigm shift: the investigation is no longer just reconstructive and reactive, but becomes potentially predictive, systemic and continuous. Moreover, the impact of AI has already been particu - larly disruptive, and will continue to be so, due as well to the extraordinary speed with which these sys - tems grow and evolve. This sudden change requires a profound rethinking of the traditional legal catego - ries of labour law and personal data protection, since
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