Recently, Division VII of the Federal Court of Appeals in Criminal and Correctional matters decided that the content of email correspondence is protected by both Constitutional and international treaties' safeguards. Therefore, in legal proceedings where email discovery has been granted, it is the sole duty of the judge to inspect the contents of the email gathered prior to being released to the parties involved (Federal Court of Appeals in Criminal and Correctional matters, Division VII, “R.I., J.”, Case No 31152/2010, June 9, 2015).
This decision arises from a criminal investigation in which the Federal Police seized the defendant’s personal computer and proceeded to conduct a search of his email correspondence. A lower court granted the search of the emails using keywords to capture emails that might be relevant to the investigation but filtering out any private or non-relevant emails. The search was conducted with representatives of the defendant being present and it turned up 17,543 emails that were deemed relevant to the investigation, and the content of the emails were saved on a separate hard-drive.
Due to a lack of personnel the lower court judge could not perform an adequate analysis of the vast number of emails and the Federal Police were allowed to retain a copy of the emails and inspect them themselves. The defendant sought to annul the granting of the emails to the Federal Police and suppress any information derived from such emails.
The Court of Appeals, in deciding for the defendant, stated that section 235 of the Criminal Procedure Code mandates that only a judge can inspect the content of correspondence, and divulge only information that may be relevant to the investigation. Additionally, the Court cited a case they previously decided on in 2008 in which they declared that the freedom of communications is violated not only by the interference of communications but also by the storage or conservation of such communications. The court also stated that email communications has the same if not more rights of privacy as postal mail, granted by the Constitution, because email requires log in information and a password designed to protect the content from third parties.
The Court of Appeals therefore annulled the decision of granting the Federal Police access to the seized emails prior to a judge’s initial analysis. The Court determined that it was the judge’s job to sort for any information and maintain the privacy of any communications that are not relevant to the investigation.