The Unlawfulness of Communication Data Constituting Personal Data Obtained by Unlawful Methods

25 July 2018Murat Volkan DülgerCommentary

Introduction

This work was written in Turkish. The summary on this page is a translation; the citation gives the original title in parentheses.

The increasingly widespread use before judicial authorities of information and documents that contain personal data and were obtained by unlawful methods, and the claims of data subjects in response that their rights have been violated, have brought the matter before the courts and made it necessary for it to be resolved by them. The European Court of Human Rights (the Court/ECtHR) recently delivered its judgment in “Benedik v. Slovenia” after examining precisely this issue, on an applicant’s complaint of a violation of rights on the ground that the police had unlawfully gathered information in a way that led to the applicant’s identity being revealed.

In order to understand whether there can be exceptions to the rule on whether evidence that contains personal data and was obtained by unlawful methods may be used against the data subject, I will first describe how the case that is the subject of the application came before the Court and then explain on what grounds it was examined under Article 8. I will then assess whether there was an interference with the applicant’s right and, if so, whether that interference was legitimate, and try to determine whether the case complied with Article 8. In doing so I will address the matter from three different angles: the lawfulness of obtaining the subscriber information; the problem of unlawfully obtained evidence in respect of the identity information allegedly obtained by unlawful methods; and the protection of personal data, since the information constitutes personal data.