2.1.4 Case Law on Data Protection
In general, specific case law concerning privacy related topics and particularly
concerning data protection is scarce. On a rare occasion in 2007, the Constitutional
Court dealt with a video-surveillance related matter in an advisory capacity.
64 The
main issue to be dealt with was the review of a norm inserted in the Criminal
Investigation Organization Act that allowed for the use of sounds and images
obtained by private security cameras of surveillance as evidence in a criminal
proceeding—to start investigation or to indict—and that granted a power to order
the presentation of recorded data without the need to request consent of concerned
persons. The Court considered that it was a matter of restriction of rights, governed
by article 17, paragraphs 4 and 5, of the Fundamental Law, and as such to pass
constitutional scrutiny it had to be subjected to a test of proportionality. The
conclusion was that it did not pass because it was manifestly unbalanced, without
sufficient legal checks—in part, according to the justices because in the past the
country lacked a comprehensive law on video surveillance—and created the risk of
sacrificing those rights in a manner that would have been excessive, arbitrary and
abusive.
65
Recently, the same court delivered opinions on matters related to data protection
in relation to freedom of information and freedom of the press.
66 This was important
in the sense that it tried to balance the public’s interest in transparency in the exercise
of public functions and the level of privacy and data protection from which holders
of public office could benefit, favouring, in this case, the former over the latter. In
another case involving the acceptability of evidence gathered by the police using
abusive interference in the mobile phone data of a suspect,
67 the Court delivered an
opinion stressing that the fact that an act of communication was not ongoing did not
mean that the data, including the registration of phone calls received and made, was
not protected by the Constitution. Therefore, though it could not recognise an
absolute right insusceptible of being limited, it stressed that even when, in exceptional situations, such interference was necessary, it had to be duly authorised by a
judge and not promoted independently by the Criminal Police as was the case. So, it
64 Advisory Opinion No 1/2007, of 6 September, Request by the President of the Republic to the
Constitutional Court of Advisory Opinion in Order to Control Preventively Norms of the Criminal
Investigation Organization Act, Supreme Court of Justice as Constitutional Court, J. Coronel (rap.),
published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 35, 17.09.2007,
pp. 659–667.
65 Id.
66 Ruling No 16/2017, of 31 July, Request for Access to Declarations of Propriety, Assets and
Interests of Holders of Public Office, C. J. Pinto Semedo (rap.), published by the Republic’s Official
Gazette [Boletim Oficial], I Serie, n. 35, 08.08.2017, II, para. 2.
67 Ruling n
27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), published by the Republic’s Official Gazette [Boletim Oficial], I Serie,
n. 11, 31.01.2019, pp. 146–178.
86
J. Pina-Delgado
In general, specific case law concerning privacy related topics and particularly
concerning data protection is scarce. On a rare occasion in 2007, the Constitutional
Court dealt with a video-surveillance related matter in an advisory capacity.
64 The
main issue to be dealt with was the review of a norm inserted in the Criminal
Investigation Organization Act that allowed for the use of sounds and images
obtained by private security cameras of surveillance as evidence in a criminal
proceeding—to start investigation or to indict—and that granted a power to order
the presentation of recorded data without the need to request consent of concerned
persons. The Court considered that it was a matter of restriction of rights, governed
by article 17, paragraphs 4 and 5, of the Fundamental Law, and as such to pass
constitutional scrutiny it had to be subjected to a test of proportionality. The
conclusion was that it did not pass because it was manifestly unbalanced, without
sufficient legal checks—in part, according to the justices because in the past the
country lacked a comprehensive law on video surveillance—and created the risk of
sacrificing those rights in a manner that would have been excessive, arbitrary and
abusive.
65
Recently, the same court delivered opinions on matters related to data protection
in relation to freedom of information and freedom of the press.
66 This was important
in the sense that it tried to balance the public’s interest in transparency in the exercise
of public functions and the level of privacy and data protection from which holders
of public office could benefit, favouring, in this case, the former over the latter. In
another case involving the acceptability of evidence gathered by the police using
abusive interference in the mobile phone data of a suspect,
67 the Court delivered an
opinion stressing that the fact that an act of communication was not ongoing did not
mean that the data, including the registration of phone calls received and made, was
not protected by the Constitution. Therefore, though it could not recognise an
absolute right insusceptible of being limited, it stressed that even when, in exceptional situations, such interference was necessary, it had to be duly authorised by a
judge and not promoted independently by the Criminal Police as was the case. So, it
64 Advisory Opinion No 1/2007, of 6 September, Request by the President of the Republic to the
Constitutional Court of Advisory Opinion in Order to Control Preventively Norms of the Criminal
Investigation Organization Act, Supreme Court of Justice as Constitutional Court, J. Coronel (rap.),
published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 35, 17.09.2007,
pp. 659–667.
65 Id.
66 Ruling No 16/2017, of 31 July, Request for Access to Declarations of Propriety, Assets and
Interests of Holders of Public Office, C. J. Pinto Semedo (rap.), published by the Republic’s Official
Gazette [Boletim Oficial], I Serie, n. 35, 08.08.2017, II, para. 2.
67 Ruling n
27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), published by the Republic’s Official Gazette [Boletim Oficial], I Serie,
n. 11, 31.01.2019, pp. 146–178.
86
J. Pina-Delgado