Analyses the procedural regime to be considered following the plea of invalidity of evidence due to unlawful interference with telecommunications, as well as the consequences of evidence obtained unlawfully.
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In the context of labour proceedings in which the regularity and lawfulness of a worker's dismissal was being discussed, the worker, after submitting her defence, attached a set of documents to the case file in order to prove the facts she had alleged, including a set of emails that the employer claimed had been obtained fraudulently, through unlawful interference with telecommunications, without the employer's authorisation and against her will, and in violation of the employer's secrecy and confidential data.
He then claimed that these documents constituted invalid evidence and should be removed from the case file.
In order to prove the allegations, the employer requested that “the appointment of an expert (with computer engineering qualifications) for the purpose of ascertaining and clarifying who, when, how and by what means/ways the emails and all the other documentation attached to the case file were obtained, as well as from which IP address, sender email address (or otherwise), by what means and on what date/s the emails were sent or forwarded to their recipient (which appears in the header of each of the emails) and ascertaining other elements that are considered relevant.”
After a certain procedural process that cannot be analysed here, an appeal was lodged with a view to assessing, in addition, the following matters:
a) The unlawfulness of the evidence relating to certain documents (Whatsapp conversations) for breach of the confidentiality of the personal message and the other documents (emails, accounting documents/information, invoices, receipts, contracts (agreement, employment contract and other contracts) court judgements, among others, for breach of the secrecy and inviolability of correspondence maintained by telecommunications; and
b) The admission of the defendant's expertise.
With regard to these matters, transcribing the aforementioned judgement, we find that
"The Constitution of the Portuguese Republic, in the chapter on Rights, Freedoms and Guarantees, enshrines in Article 26 the right to privacy and in Article 34 the right to secrecy of correspondence and other means of communication, as well as the prohibition of interference by public authorities in correspondence, telecommunications and other means of communication, with the sole exception of cases provided for by law in criminal proceedings (Article 179 of the Criminal Procedure Code).
For its part, Article 32-8 of the CRP states that all evidence obtained through abusive intrusion into private life, correspondence or telecommunications is null and void in criminal proceedings. This rule is repeated in Article 126-3 of the Criminal Procedure Code."
"The rules in articles 32 and 34 of the Constitution, although directly aimed at limiting the actions of public authorities in criminal proceedings, taking into account the fundamental rights, freedoms and guarantees of private individuals, also apply analogously in the field of civil proceedings and, procedurally and extra-procedurally, to private individuals, who are, by majority reason, prohibited from interfering in correspondence, telecommunications and other means of communication, without, however, the indirectly private exceptions in article 34 of the CTP applying to authorities involved in criminal proceedings."
Article 194 of the Criminal Code punishes the intrusion, knowledge and disclosure of telecommunications content
The term "telecommunications" covers electronic communications: telecommunications are "all technical procedures for the incorporeal transmission at a distance of any kind of information or news addressed to an individualised recipient, ..., but includes emails received by the recipient and stored on their computer, even if they are not opened or known by the recipient.
The Civil Code's provisions on personality rights can be found in Articles 70 to 81, which include rules aimed at guaranteeing the secrecy of confidential missives (Articles 75 and 76) and writings similar to them (Article 77), which stipulate that the recipient of a non-confidential letter can only use it in terms that do not contradict the author's expectations (Article 78) and a general rule that imposes on everyone the duty to preserve the privacy of another person's private life (Article 80).
"Illicit evidence is that which is prohibited because its presentation in itself violates fundamental rights (e.g. intimate diary), as well as that which is formed or obtained by illicit means (e.g. testimony produced under duress; a document withheld from the opposing party)."
As explained, the issue of illicit evidence, obtained or used in violation of provisions of substantive law, does not find in the CPC (or CPT, for that matter) an express rule that considers such evidence null and void, unlike what happens under the CPC (see articles 125 and 126).
Illegal evidence can thus be considered to be invalid due to a violation of the law at three different stages: when the evidence is obtained, when it is produced or when it is evaluated.
Thus, and quoting José Lebre de Freitas,
"The public interest in discovering the truth can never, on its own, override the right to secrecy of correspondence, except in the context of criminal proceedings, in the cases and circumstances described in the CPP and covered by article 34-4 CRP, as shown by the norm of this article and that of article 417-3 CPC.
(...)
It is important to emphasise that, "civil procedural law does not establish any specific moment for raising the issue of evidentiary unlawfulness, nor for deciding it, but it seems clear to us that such an issue should be raised in the exercise of the adversarial process, after the request for the use of the means of proof has been made, although, for certain means of proof, it should be raised at the time of their evidentiary production.
The incidental issue raised in this way should - after the counterparty has exercised their right to reply, as a demonstration of respect for the fundamental principle of the adversarial process - be the subject of a decision, whether interlocutory or final"
As a result, the messages sent via WhatsApp, in which the worker was not involved, stated that "messages and calls are encrypted point by point. No one outside this conversation, not even WhatsApp, can read or listen to it", they were considered to have been obtained unlawfully and were therefore null and void for violation of Article 32(8) of the Portuguese Civil Code.
As for the expert evidence requested by the employer, following the submission of the documents by the employee after her defence, in view of the allegation that the respective documents had been obtained fraudulently, through unlawful intrusion into telecommunications, and were therefore null and void, the Court of Appeal ruled that the legal regime laid down in articles 446 to 444 of the Civil Code should be applied by analogy. 446 to 449 of the Civil Procedure Code - the regime applicable to the "Ilision of the authenticity or probative force of a document", with a view to determining whether the documents are admissible because they were unlawfully obtained or, on the contrary, whether they are not admissible because they were not unlawfully obtained, by analogue application, under the terms of Article 10(1) of the Civil Procedure Code.
So the Court of Appeal decided to carry out the requested expertise.
Summary:
"I - Illicit evidence is that which is prohibited because its presentation in itself violates fundamental rights, as well as that which is formed or obtained by illicit means.
II - In a procedural context in which one party requests that documents be attached and the other party requests that the documents be removed on the grounds that they were obtained fraudulently, through unlawful interference with telecommunications, and are therefore invalid evidence, the rules of articles 446 to 449 of the Code of Civil Procedure should be applied by analogy in order to determine whether the documents are admissible because they were lawfully obtained or whether, on the contrary, they are not admissible because they were obtained unlawfully."
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