On September 9, 2008, the Belgian Supreme Court (Court de Cassation), ruling in a criminal case, interpreted the secrecy of electronic communications in light of Article 8 of the European Convention on Human Rights and Article 17 of UN International Covenant on Civil and Political Rights (Right to Privacy). The Supreme Court stated that the recording of a private communication by one party to the communication without the other party’s notification or prior authorization does not systematically breach the right to privacy.
However, the Supreme Court concluded that use of the recording may be illegal. The legality of the use must be analyzed in light of the “reasonable expectation of privacy” of the parties to the communication. This new concept of “reasonable expectation of privacy” depends on the facts, in particular the content of the communication and the circumstances surrounding the conversation. Consequently, in certain circumstances, evidence previously dismissed by courts could become admissible. It is now up to the Court of Appeal to apply this new concept to the specific facts of the case. The text of the case is available (in Dutch) here.