3 Data Protection in the Electronic Communications Sector
In its ruling no. 403/2015, of 27 August 2015, the Constitutional Court assessed
whether Article 78 (2) of the Parliamentary Decree no 426/XII, entitled “Legal
System of the Republic’s Information System”, complied with Article 34(4) of the
Portuguese Constitution.
The rule in question states that officials of the Security Information Service and
the Strategic Defence Information Service may, in undetermined circumstances, gain
access to banking and tax data, data on communications traffic, location or other data
connected with communications that are needed in order to identify the subscriber or
the user, or to find and identify the source, destination, date, time, duration and type
of communication, as well as to identify the telecommunication facilities or its
location whenever this was deemed necessary, suitable and proportional in a democratic society, with the aim of fulfilling the legal tasks of information services,
subject to a necessary prior authorisation from a Preliminary Supervision
Committee.
For its part, Article 34 (4) in the Constitution states that the interference of public
authorities in the correspondence, telecommunications and other means of communication is forbidden, except in cases related to criminal proceedings, as provided for
in the law.
In its answer to the first questions raised in this respect, the Constitutional Court
affirmed that the prohibition to interfere in communications, as laid down in Article
34(4) in the Constitution, covers the traffic data referred to above; it also covers the
exception mentioned in the final part of the provision which may only occur within
the framework of the legal provision related to criminal proceedings (which is the
exception that is constitutionally acceptable). When quoting case-law and legal
writings on the subject, the Constitutional Court inter alia indicated that the necessities related to criminal investigation and to obtaining evidence justify reducing
individual rights to the communications in question. However, such necessities
require the legal authorities’ evaluation in terms of needs, suitability and proportionality in order to avoid that they violate the principle of the least possible
interference and of proportionality. Therefore, any evidence thus obtained may be
considered as null and void on the basis of Article 32(8) of the Constitution and of
Article 189 of the Code of Criminal Procedure. Indeed, notwithstanding the quality
of its members, the Preliminary Supervision Committee (Comissão de Controlo
Prévio) is not a legal authority; rather, it is an administrative body so that its
intervention is not included in the sphere of a criminal proceeding.
On these grounds, the Constitutional Court decided that the decree approved by
the Parliament was unconstitutional.
However, on 19 July 2017 the Parliament approved Organic Law no. 4/2017,
published in the Portuguese Republic’s Official Journal on 25 August 2017.
According to this act, information services officials are entitled to access communication data, if authorized and controlled by judges of the Supreme Court.
The Constitutional Court will have to decide, probably next year, whether this
law is compatible with the Portuguese Constitution.
278
A. S. Pinheiro
In its ruling no. 403/2015, of 27 August 2015, the Constitutional Court assessed
whether Article 78 (2) of the Parliamentary Decree no 426/XII, entitled “Legal
System of the Republic’s Information System”, complied with Article 34(4) of the
Portuguese Constitution.
The rule in question states that officials of the Security Information Service and
the Strategic Defence Information Service may, in undetermined circumstances, gain
access to banking and tax data, data on communications traffic, location or other data
connected with communications that are needed in order to identify the subscriber or
the user, or to find and identify the source, destination, date, time, duration and type
of communication, as well as to identify the telecommunication facilities or its
location whenever this was deemed necessary, suitable and proportional in a democratic society, with the aim of fulfilling the legal tasks of information services,
subject to a necessary prior authorisation from a Preliminary Supervision
Committee.
For its part, Article 34 (4) in the Constitution states that the interference of public
authorities in the correspondence, telecommunications and other means of communication is forbidden, except in cases related to criminal proceedings, as provided for
in the law.
In its answer to the first questions raised in this respect, the Constitutional Court
affirmed that the prohibition to interfere in communications, as laid down in Article
34(4) in the Constitution, covers the traffic data referred to above; it also covers the
exception mentioned in the final part of the provision which may only occur within
the framework of the legal provision related to criminal proceedings (which is the
exception that is constitutionally acceptable). When quoting case-law and legal
writings on the subject, the Constitutional Court inter alia indicated that the necessities related to criminal investigation and to obtaining evidence justify reducing
individual rights to the communications in question. However, such necessities
require the legal authorities’ evaluation in terms of needs, suitability and proportionality in order to avoid that they violate the principle of the least possible
interference and of proportionality. Therefore, any evidence thus obtained may be
considered as null and void on the basis of Article 32(8) of the Constitution and of
Article 189 of the Code of Criminal Procedure. Indeed, notwithstanding the quality
of its members, the Preliminary Supervision Committee (Comissão de Controlo
Prévio) is not a legal authority; rather, it is an administrative body so that its
intervention is not included in the sphere of a criminal proceeding.
On these grounds, the Constitutional Court decided that the decree approved by
the Parliament was unconstitutional.
However, on 19 July 2017 the Parliament approved Organic Law no. 4/2017,
published in the Portuguese Republic’s Official Journal on 25 August 2017.
According to this act, information services officials are entitled to access communication data, if authorized and controlled by judges of the Supreme Court.
The Constitutional Court will have to decide, probably next year, whether this
law is compatible with the Portuguese Constitution.
278
A. S. Pinheiro