New Court Ruling on Use of Employees’ Emails as Evidence in Criminal Cases

On May 25, 2019, Room I of the Criminal and Correctional National Court of Appeals declared null and void the admissibility as evidence of emails sent by an employee and obtained by his employer. The Court considered that the emails had been obtained in violation of the right to privacy embodied in articles 18 and 19 of the Constitution as there was an expectation of privacy regarding such emails.

The decision in the ‘C., J. A. y otro ^s/ nulidad’ case ruled in favor of the defense when it stated that in the case "the expectation of privacy was breached, since the employee was not aware of the possibility of invasion of his privacy or the type of control that his employer intended and finally exercised when accessing to his personal email."

The Court based its decision on the State’s obligation to protect those private spheres where individuals have an interest in privacy. In this sense, the expectation of privacy was considered “clearly revealed in the fact that the electronic mail has privacy protection features that are stronger than traditional mail, since its operation requires a service provider, a user name and an access code or password, all of which prevents the intrusion of third parties, without the authorization or consent of the owner of the account."

We recommend following the evolution of the case law in this regard closely, particularly when considering the use of employees’ emails in internal investigations.