Social media is nowadays prominent in the vast majority’s daily life, a fact which attests to the dynamic role new technologies play in modern society. As a result of this new reality, social media are now discussed even in courtrooms, since litigants tend to increasingly submit pictures, posts, even text messages in popular applications as means of proof.  

Handling such situations has become an issue for Greek judges, especially with regards to the European legislative framework of data protection and correspondence privacy policies. Is there a line that is crossed when using such media as means of proof? Are legally protected rights of constitutional prominence being violated? How is the Greek jurisprudence responding to such questions under the scope of both the constitutional and EU law?

The legal framework and the issue at hand

More specifically, the Constitution in articles 9, 9A and 19 pledges the protection of private life, personal data, and communication privacy respectively, operating in alignment with the supranational legislation, such as article 8 of the European Agreement for Human Rights, which also concerns the protection of privacy and correspondence. Any means of proof acquired by violating the above provisions may not be used in court (19Α§3 Σ). GDPR also pledges personal data protection for the cases it applies to. However, it should be mentioned that data protection does not constitute an absolute right to which all other rights succumb. On the contrary, as in every other case of conflict of rights, the principle of proportionality applies, where which right will be overruled by the other is decided ad hoc.

It so becomes a legitimate issue, whether any posts, such as pictures, comments or message exchange in social media like Facebook or messenger can constitute lawful means of proof which may be presented before the court or if they constitute personal data of the person who published them on their own personal profile or sent them from their personal phone, without intending to make them public, in which case they would fall under the ECHR’s (European Convention on Human Rights) and GDPR’s protective provisions.

Jurisprudence

Text messages

The Judgement of the mixed Grand Jury of Iraklion no. 21-2019 concerning a case of criminal nature is worth mentioning, in which the defense counsel submitted to court pictures that had been shared on Facebook, as well as text exchanges from Messenger. The civil advocate requested that those not be taken into consideration as objects of article 19A§3 of the Constitution, according to which they violate the personal data protection provisions. According to the court, mobile phones should be considered as personal computers since they now have the same functionalities. Text messages should be considered electronic messages, since they constitute the sum of data encrypted in the magnetic disc of the cellphone and were therefore subject to digital processing in the central drive and were presented according to the program’s orders in a way readable by man on his cellphone screen. Those messages are stored in the recipient’s cellphone memory, so that they can be recalled at any time. Because this is a known fact for the sender, there is deemed consent that the recipient becomes holder of those messages. Therefore, text messages fall under the protection of the provisions which safeguards the inviolability of privacy and correspondence. However, they can be used as means of proof in court without being considered illegal, if the litigants submitting them are also the persons involved in the exchange of those messages. As for third parties submitting such messages to court, these shall constitute unlawful means of proof, unless the litigant has no other way to prove their assertions.

This exact view of the court on this issue indicated the importance of weighing the various conflicting rights based on the principle of proportionality, since the constitutionally established provision of judicial protection cannot always resile before the protection of personal data. At the same time though, it should be considered that the use of such messages as means of proof creates a feeling of insecurity for the users of respective apps. They might feel that whatever they share in conversations which they consider to be private can be used against them in the future, resulting in the disproportionate restriction of free communication.

Pictures and posts

As far as the pictures shared on Facebook are concerned, the same court judged that their use as means of proof falls under the regulatory field of GDPR, since from the moment they are submitted to court they leave the private sphere of the person responsible of processing, and therefore using them in court cannot be considered as processing within the framework of personal use (GDPR article 2 par. 2 ab. c). At the same time, however, Facebook users agree with the terms of use upon registration, one of them being that any other user of the app has access to and can collect and use the content shared on their accounts. As a result, accepting those terms creates proof of their desire to publish it but not the desire to patrol it. Therefore, the court allowed at the end to also submit pictures as means of proof. Based on the same argument concerning the desire of publishing the shared content, jurisprudence of civil courts has judged the relevant means of proof in the same way.

The result is that posts visible only to one’s Facebook friends constitute personal data according to the relevant legislation and may therefore not be used as means of proof. On the other hand, posts shared publicly can be used as evidence, since they are already accessible to a large number of people.

To sum up, jurisprudence has opened the path for the use of pictures, posts, and electronic messages as means of proof.  In the digital world, where we often forget how far every piece of information we share can travel, conflict of rights seems inevitable. Responding to modern developments, the concept of privacy seems to be changing, and it is admittedly becoming hard to tell where it starts and where it ends. In the world of the internet, pinning down privacy’s realm is perhaps still impossible.