Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
REGISTER NOW: Join us on October 3 & 4 for the “Regulating the Online Public Sphere: From Decentralized Networks to Public Regulation” conference
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The European Court of Human Rights (“ECtHR”) ruled that the search and seizure of the applicant’s computers without a warrant by the respondent state Bulgaria, combined with the unlawful retention of computers, which was outside the scope of the search, violated Article 8 of the European Convention on Human Rights (“ECHR”). There was no dispute that the seizure of the computers—which contained personal information—constituted an interference with the private life of the applicant so the ECtHR then considered whether this interference was in accordance with the law and whether it was necessary in a democratic society. The Court noted the law allows searches without a warrant under “pressing circumstances”, but did not find the current circumstances sufficiently pressing because the searches were ordered three weeks before they were conducted. Accordingly, the ECtHR entered fines against the respondent state.
This case arises from the applicants’ challenge against the Republic of Bulgaria for the search and seizure of computers in the applicants’ “computer club.” The computer club involved the leasing of computers to customers for one Bulgarian Lev per hour. As the applicant was leasing these computers, he was required to pay licensing fees, which the he failed to renew in 2004. The police conducted a check of the business that year and issued a warning. The club was shut down for health reasons later that year.
In 2005, a complaint was lodged against the applicants for improper reproduction and distribution of computer games. The prosecutor, after finding enough information existed to move forward with the complaint, ordered the police to conduct an inquiry into the matter. In February of 2005, the police came to the computer club, and found the club to still be in operation. The officers search the club and seized the computers. The same day, a District Court Judge approved the search and seizure operation. The applicants lodged a complaint against the Court stating that the search and seizure was unlawful. This complaint was deemed inadmissible as the action had already been approved by the Court.
The applicants moved for return of the computers because they held personal information, but the motion was denied. The first applicant was charged with unlawful distribution of the computer programs, which was affirmed by the Court of Cassation. The first applicant was then sentenced to imprisonment and a fine. This appeal followed.
The European Court of Human Rights (“ECtHR”) first looked at whether there was an interference with the applicant’s rights. The Court found there was no dispute that the seizure of the computers—which contained personal information—constituted an interference with the private life of the applicant. The ECtHR then looked to whether this interference was in accordance with the law and whether it was necessary in a democratic society. The Court noted the law allows searches without a warrant under “pressing circumstances”, but did not find the current circumstances sufficiently pressing because the searches were ordered three weeks before they were conducted.
Nevertheless, this lack of a judicial warrant can sometimes be remedied through retrospective review. Thus, the ECtHR examined the review that occurred after the search. The ECtHR noted that the lower court only stressed that pressing circumstances existed for the search and seizure but did not elaborate on what those circumstances in fact were. Furthermore, the applicants requested the return of their computers several times and the Court found the retention of their computers was outside the scope of the search. Therefore, the ECtHR found a violation of Article 8 ECHR, because the search and seizure was not in accordance with the law. Accordingly, the ECtHR entered fines against the respondent State.
The applicants also argued that Article 13 was violated. The ECtHR declared this argument inadmissible.
Dissent: Judge Vehabovic dissented, arguing there was not a violation of Article 8 ECHR because the Article is not applicable where a case does not involve “private” information. The dissent argued that the information on the computers in question was not “private” because the computers were freely accessible to visitors of the club.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by prohibiting the search of an individual’s computers without first obtaining a search warrant, and by prohibiting the retention of computers outside the scope of what was needed for the search to be conducted.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 34; Article 8
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.