The law only sanctions interference behaviors carried out by those who are extraneous to the private life acts that are the object of undue interception. This is because otherwise the legal right of home privacy would not be damaged.
Therefore, whoever participates, with the consent of the offended party, in the scene depicted (be it domestic, intimate, or in any case such as not to be perceptible to an indeterminate number of people) cannot be an active subject of the crime.
In this case, the man had filmed his wife in the bathroom or bedroom, naked or half-naked, busy with personal care or personal hygiene, and no evidence emerged that the woman wanted to share the described moments of intimacy with the defendant. The latter was therefore not allowed to participate in them.
It is irrelevant whether the person is the spouse or, therefore, a person generally involved in the private life of the injured party; those specific activities, unduly intercepted, are protected because they are private.
In practice, the person who sets up means of visual or sound interception in his or her own home, capturing images or information relating to the private life of OTHER subjects who are there, whether they are stable cohabitants or occasional guests, IS RESPONSIBLE for the crime. While the person who SHARES the act of private life with the same subjects and with their consent IS NOT RESPONSIBLE for the same crime. The distinction between illicit and licit interference is not in fact given by the nature of the moment of privacy violated, but by the circumstance whether or not the active subject was a participant.
I fully agree with the reasoning of the Court of Cassation.
