Legal problems of digital evidence

Posted by D. Daniel Sokol

John Temple Lang, Cleary Gottlieb Steen & Hamilton LLP, Senior Visiting Research Fellow, Oxford, Professor, Trinity College Dublin has written an article on the Legal problems of digital evidence.

ABSTRACT: Article 7 of the Charter of Fundamental Rights gives companies a right of privacy. This is subject, under Article 8(2) of the European Convention on Human Rights, to intervention by public authorities, which is ‘in accordance with the law’ and ‘necessary … in the interests of … economic well-being’. The authorities must not have an unfettered discretion: the law must indicate the scope of any discretion, and the way it may be exercised. When a competition authority examines digital evidence, electronically stored information (ESI) is copied using forensic software, and the copies are analysed using search terms designed to select documents that are within the terms of the inspection decision and relevant to its purpose. The company can prevent unauthorized ‘exporting’ of documents finally selected only by reviewing every document. If the company considers that a document is being copied illegally because it is outside the scope of a valid inspection decision, the only effective and sufficiently prompt remedy under EU law is to claim compensation for breach of privacy under Article 7 of the Charter, and to ask for interim measures. But it is not yet clear that the General Court will say that every breach of Article 7 gives a right to at least some compensation, and it is not clear how far interim measures will be given in such cases. However, it is clear that the Commission’s freedom to copy and take all documents within the scope of even a valid inspection decision is not unfettered, as some Commission officials have suggested. This article discusses the constraints on the Commission’s powers, and by implication those of other competition authorities in Europe.