Email seizure: read and unread emails. Different regimes?

The “seizure of electronic mail and records of communications of a similar nature” regulated by Article 17 of Law 109/2009 – the Cybercrime Law – has always been controversial, particularly as to whether or not it is necessary to distinguish between closed and open electronic mail. 

The need for this distinction and the consequent application or dismissal of Article 17 of the Cybercrime Law was a very relevant issue insofar as this rule determines the application of Article 179 of the Criminal Procedure Code, i.e. the necessary authorisation from an investigating judge, otherwise, the evidence will be considered null and void. This need for prior judicial permission is based on Article 34 of the Constitution of the Portuguese Republic, specifically the inviolability of correspondence.  

The concept of correspondence at the root of Article 34 of the Constitution and on which Article 179 of the Code of Criminal Procedure is based is the traditional concept of a sealed envelope, which is why its application in the technological environment, specifically to emails that have already been read, raises some doubts as to the potential restriction of a fundamental right, generating the necessary control by the investigating judge. 

It was, therefore, crucial to know whether Article 17 of the Cybercrime Law applied only to emails that had not yet been read or whether, on the contrary, there was no difference between emails that had or had not already been read so that the Public Prosecutor’s Office could not seize them without the authorisation of an investigating judge. 

After numerous rulings by the Portuguese courts to the effect that this authorisation was not necessary in the case of emails that the recipient had already read because they were only documents and other rulings to the contrary, the Supreme Court of Justice decided the matter in a Uniform Case Law Ruling.  

What was the Supreme Court’s decision? 

In the ruling of 11 September this year, the judges who make up the Criminal Sections of the Supreme Court of Justice ruled that “the distinction between open and closed messages is, in this context, artificial and fallible”. In this sense, the intervention of the investigating judge, as the judge who guarantees rights, freedoms and guarantees (in this case, the fundamental right to the inviolability of correspondence), was considered necessary at all times, regardless of whether or not the recipient had already read the emails.  

What are the consequences? 

As its name implies, a judgement that standardises case law has the function of determining a constant solution to an issue on which the lower courts have differed.  

These courts are not formally bound by the decision now made by the Supreme Court of Justice. However, if they decide against the ruling, the losing party will always have the right to appeal.  

In this way, rulings that standardise case law persuade the courts of first instance and the Courts of Appeal to rule in a specific direction, dispelling doubts and contributing to legal certainty.  

In this specific case, this ruling could determine the nullity of all evidence acquired through the seizure of emails that have already been read without the prior authorisation of an investigating judge, both in future cases and in those that are still ongoing. 

With the Supreme Court ruling that there is no difference between emails that have already been read or unread, defendants whose emails were seized without authorisation from an investigating judge, even if they had already been read at the time of the seizure, can request that the evidence acquired in this way be declared null and void and benefit from the Supreme Court’s ruling.