For years the certified e-mail box (PEC – certified electronic email, equivalent of registered mail) has been an essential tool for the lawyer, especially in relation to litigation and the formal service of Courts documents.
This occurs not only when the professional finds himself the recipient of communications or notifications from the judicial bodies and of the counterparties, but also when the lawyer has to proceed against a company and in general against any entity required to have a certified e-mail address (i.e. companies and VAT registered such as individual firms, artisans, freelancers, public administrations – see law 179/2012).
The lawyers and the legal entities referred to above are both responsible for the proper functioning of their PEC; for example, in the case of a defender of a party who does not receive notification of a judgment for the purposes of the appeal because the certified mailbox with which he is equipped is full and, without his knowledge, the terms for the appeal expire. For the Italian Supreme Court in such context the notification is always valid; in fact, “… The failure of the electronic communication of a judicial measure due to the saturation of the capacity of the recipient’s PEC box is an event attributable to the latter …” (Supreme Court, Labour Section 20.05.2019, n° 13532 in Civil Law Mass. 2019).
The Court has therefore sanctioned a real duty of diligence on the part of the professional who is required to equip himself with adequate IT tools to avoid malfunctions or unexpected blocks of the certified e-mail box such as, for example, the installation of warning systems upon reaching certain thresholds for the capacity of the mail account (see legal ref. DM n. 44 of 2021 art. 20, paragraph 5; Supreme Court Section I. 20.09.2021, n. 25426 in Giust. Civ. Mass. 2021; on the inadequate management of the storage space see Supreme Court v. Labour Section, 02.03.2021, n. 5646 in Guida al Diritto, 2021, 14).
In summary, a mere IT malfunction of the certified e-mail service not supported by precise and detailed evidence of an unforeseeable and inevitable external event, places a direct responsibility on the part of the lawyer (for an example this situation see the very recent Ordinance of the Supreme Court. Section VI. 02.03.2022, no. 6912 in italgiure.giustizia.it). The Italian Supreme Court reached similar conclusions in a case of notification of an injunction by certified e-mail, when the notification was not received by the recipient because it was stored in the spam folder and unknowingly deleted by the recipient. In ruling on this case, the Court expressed itself as follows: -“… In the hypothesis of notification of the injunction by certified e-mail, pursuant to article 3 bis of l. n. 53 of 1994, the fact that the PEC notification e-mail ended up in the junk mail (spam) folder of the recipient’s PEC mailbox and was deleted by the receptionist, without opening and reading the envelope, for fear of damage to the company’s IT system, cannot be invoked by the accused as a hypothesis of fortuitous event or force majeure for the purpose of demonstrating the lack of timely knowledge of the decree that legitimizes the proposition of late opposition pursuant to Article 650 of the Italian Code of Civil Procedure … “- v. Cass. Civil, Section III, 23.06.2021, n. 17968 in Giust. Civ. Mass., 2021). However, the topic is still debated: with interlocutory ordinance no. 2755 of 05.02.2020, Section VI of the Italian Supreme Court ordered the referral to the United Sections to further clarify the issue, proposing three distinct solutions to the hypothesis of a full certified mailbox: the first contemplates a sort of obligation to renew the notification according to the rules dictated by articles 137 of the Italian Procedural Civil Code et seq.; with the second, however, the attestation of an actual saturation of the mailbox is considered to be the same as the actual delivery receipt; finally, with the third interpretative solution, a possible order by the judge to renew the notification is hypothesized. We must wait to see how the United Sections of the Italian Supreme Court, which have not yet intervened to settle the question, will express themselves.