Certain professionals in the Netherlands have a statutory duty of confidentiality. People seeking medical or legal help, for example, need to be confident that their information is in safe hands. If there is a chance that information could be out in the open, people might hesitate to go to the doctor, for example, or to tell a complete and accurate story to their lawyer. And that could have very undesirable consequences for (public) health or the rule of law. As for the latter, to access good legal aid, a litigant should feel free to share all relevant information with his lawyer.
Who decides whether communications fall under privilege?
But there is more to it. Those seeking justice should also be able to trust, in a state under the rule of law, that third parties, such as the police and the judiciary, will not learn about phone calls, apps or e-mails with a secrecy holder. And that is where it appears to be rattling on all sides. Despite laws and regulations to ensure that confidential information is not read by investigating officers, there still appear to be major flaws in the system.
For example, when it comes to the way secret-keeper information is selected. If large amounts of data are intercepted, the prosecution believes it has the right to assess this data itself for the presence of communication with secret-keepers. That means they will take note of the content, otherwise they would not be able to judge whether or not the information should be used in the criminal case. But even if the secret-keeper information is kept out of the file and destroyed, investigating officers will have been able to take note of it. And whether certain investigative choices are made on the basis of that knowledge is virtually unverifiable at the moment.
Judge whistles OM back
To put a stop to this practice, summary proceedings were initiated, which were thickly lost by the prosecution on 22 March. The immediate reason for these summary proceedings was a criminal investigation in which the OM had demanded all e-mails of an asset manager from a hosting company. Some 2 million files were involved. Among them were also over 3,000 e-mails between the company and the lawyers they had engaged. In order not to disrupt the investigation, the lawyers and their clients had not been informed of this. The lawyers filed summary proceedings on the grounds that the e-mails should never have been seized and had to be returned. According to the public prosecutor, there was nothing wrong with their modus operandi, because the only way to assess whether there would be classified information was to check the e-mails themselves on this. Moreover, the prosecutor conducting the substantive test would not be involved in the relevant investigation.
Substantive test by OM not required
The court left little to the prosecution's position. The court ruled that the prosecution's approach was not entirely in line with that law, which aims to prevent unauthorised persons from gaining knowledge of confidential information. As a result, there would be, at the very least, a real danger that the right of confidentiality had been or would be violated in multiple criminal investigations. The court further considered that the method used by the public prosecutor resulted in the plaintiffs' right to privilege being violated, whereas this violation could have been largely prevented in advance in a simple manner. The public prosecutor could have instructed the hosting company, which had to intercept the e-mails after being requested to do so by the public prosecutor, to provide only those digital data that did not originate from or were addressed to (directly or in cc) one of the lawyers involved. The OM is further prohibited from continuing this conduct in the case in question.
Does the prosecution understand the importance of the right to privilege?
This ruling arrived at the prosecution as a sledgehammer blow. It is considering an appeal because it should not be left to a hosting company to judge whether or not information would fall under the right to privilege. But the court's consideration is, in my view, crystal clear. There need be no substantive test at all. Only the emails originating from or addressed to a lawyer should be filtered out. This could be done on the basis of the email address. More than a technical operation should not be necessary for this. It is worrisome that even now the prosecution believes that investigators and the public prosecutor should assess the content of correspondence. It thus does not seem to understand much about the essential importance of the right to privilege in a constitutional state. However, the prosecution will have to follow up on the court's ruling.
Impact
This ruling will still have the necessary impact in many pending cases. If, as the court fears, the right to privilege has actually been violated in several criminal cases, this could lead to sanctions by the court. This could include inadmissibility of the prosecution, exclusion of evidence or reduction of sentence. After all, a litigant's interests have clearly been harmed.
Mr. D.M. Penn