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European Observer on fundamental right's respect

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Case Law BvR 370/07 (27/02/2008)

Type: Judgment

Authority: National Courts: Supreme Courts (Germany) - Bundesversassangsgericht

Date: 02/27/2008

Subject: 1. The rights of personality (art. 2, par. 1 combined with art. 1 par. 1 Fundamental Law) include the fundamental right to privacy and to the integrity of technical-computer systems. 2. The occult exploration of a technical-computer system, which allows to control its use and to read its content, is compatible with constitutional norms if there is actual circumstantial evidence that a good of primary importance has been put in a situation of real danger. Goods of primary importance are safety, life, freedom of a single person and of the whole community, when an attack to these is a threat to fundamental elements or to the State’s existence or to the fundamental elements of the single person’s existence. Such measure can be considered already justified when it is not possible to ascertain with sufficient probability the imminence of the danger, as long as there is specific circumstantial evidence that a good of primary importance, in the particular case, is put into danger by individuated people. 3. In principle, the occult exploration of a technical-computer system can be authorized only by an order of the Judiciary Authority. The law that allows such an invasive measure must also provide norms able to guarantee the core of the private sphere. 4. To the extent that the law allows only the public power’s intervention, through which it is possible to acquire the contents and the ways of telecommunication in the net or the relative data can be subjected to valuation, the measure must be issued in accordance with art. 10, par. 1 of the Fundamental Law. 5. In the case that, with provided technical instruments, the State comes to know the content of communications via internet, there is a violation of the private sphere according to art. 10, par. 1 of the Fundamental Law, only when the proceeding Authority has not been authorized by one the participants to the communication. When the proceeding Authority comes to know about the content of freely accessible communications in internet or it takes part to such kind of communications, there is no violation of a fundamental right.

Original language: German

Classification: Freedoms - Art. 8 Personal data: fairly processing - Personal data: consent - Personal data: access - Personal data: rectification

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