Scope of the secrecy of telecommunications
Prohibition of evidence obtained by a breach of fundamental rights
Inviolability of telecommunications
Confidentiality and secrecy of telecommunications
Limits on the guarantee of the inviolability of telecommunications
Personal data stored on the computer systems of telecommunications operators
RULING Nº 241/2002
29 of May of 2002
The Constitution establishes a series of rights protecting citizens' privacy.
The confidential nature of communications, guaranteed by Article 34.1 of the Constitution, includes not only the content of telecommunications, but also information such as the type, time, duration and frequency of use.
However, the guarantee of the inviolability of telecommunications is not an absolute one; there is provision for exceptions in cases "laid down by law" (Article 34.4). The Constitution has limited such cases to those "relating to criminal procedure". Under the current legislation, even in criminal proceedings, interference with telecommunications is authorised only in cases where the nature of the crime in question falls under the category of crimes whose seriousness is in the fundamental interest of social peace, of such a nature which is in the fundamental interest of social peace, that the interference is warranted. Furthermore, the prohibition on interference with telecommunications covers not only tapping, intercepting or monitoring communications, but also any associated information, in particular the type of information provided by the telecommunications operators of the case in question.
The regulations governing authorisation for interference in telecommunications are unconstitutional if permitted even in proceedings concerning a labour dispute - information on usage data and itemised bills for the telephone line are requested by virtue of a court decision, since this violates the basic right to respect for privacy and the guarantees of the confidentiality of (and not interference in) telecommunications, established by Articles 26.2, 34.1 and 34.4 of the Constitution.
A company dismissed one of its employees because the latter had brought the firm into disrepute by means of an e-mail circulating on the Internet. The employee in question appealed to the courts and the firm asked for information to be supplied from the telecommunications operators. The court acceded to this request and the telecommunications operators supplied information on the communications made. This information showed (i) that the employee was the subscriber to the line from which the e-mail concerned had been sent and that he was the owner of the computer which had access to Internet services, and (ii) the times, recipients and length of the calls made (itemised bill). In the light of this information and other evidence submitted, the court ruled that the employee had indeed been the author of the message in question and that given that it had brought the firm into disrepute, the dismissal had been legitimate.
The employee appealed to the Constitutional Court maintaining that the information provided by the telecommunications operators was protected by an obligation of confidentiality and that it could not be taken into account as it constituted prohibited evidence. The firm replied that the evidence had been obtained with the authority of a court decision and in accordance with the law, and was therefore admissible.
The Constitutional Court pointed out that Article 26.1 of the Constitution recognised the "right to the protection of privacy"; Article 34 guaranteed the inviolability of the "privacy of [an individual's] correspondence and other means of private communication" (Article 34.1) and prohibited any "interference (...) with correspondence or telecommunications (...), except in cases laid down by the law relating to criminal procedure" (Article 34.4); and, with regard to guarantees in criminal proceedings, Article 32.8 stated that "evidence is of no effect if it is obtained by (...) wrongful interference with private life, the home, correspondence or telecommunications".
The Court held that what was at issue was not merely the confidentiality of personal data supplied to telecommunications operators which they "interpret or elucidate" (render intelligible) - i.e. that it was not the special confidential relationship between the user and telecommunications operators to which an exception could be made by means of a court decision, rather the issue was the inviolability itself of telecommunications. Accordingly, dispensation from confidentiality could never justify an order to provide information contained in the computer systems of telecommunications operators, particularly in a civil case.
In the same way as in a criminal trial, in which defence of the dignity of the accused through the prohibition of evidence obtained by a breach of fundamental rights will always limit the verification of material facts, in a civil trial too, the obtaining of evidence by means of personal data stored on the computer systems of telecommunications operators - data concerning communications made or with regard to which the user had requested confidentiality - violates the right to respect for privacy and the inviolability of telecommunications.