Communicated on 12 July 2019
THIRD SECTION
Application no. 42541/18
Rodrigo TENA ARREGUI
against Spain
lodged on 30 August 2018
SUBJECT MATTER OF THE CASE
The application concerns the interception of the applicant’s emails by a private entity (a political party), and the disclosure of their content coupled with the applicant’s full name in an internal report.
In the context of an internal dispute over the future of the organisation between the political party’s leadership and certain of its members, the political party initiated an internal investigation against one of its members for acting against the interests of the party and alleged wrongdoing. The investigated person was expelled from the organisation, and the political party commissioned a private company to conduct an investigation on the investigated person’s email account provided by the political party using a number of keywords that had previously been chosen by the political party itself.
Within the framework of the investigation, the political party had access to some emails that the applicant (also a member of the political party) had exchanged – using his personal email account – with the investigated person, who had sent emails from the email account provided by the political party. The final report resulting from the investigation included the applicant’s name and disclosed the content of the emails, mainly related to the political party’s internal dispute. The report was initially disclosed to two different bodies of the political party (the Management Board – consisting of approximately 20-21 persons – and the Political Council – 150 persons); the information was later leaked to the press – the person or persons responsible for the leak were not identified. On an unspecified date, the applicant withdrew his membership of the political party.
The applicant brought criminal proceedings against two members of the political party for the offence of disclosure of confidential information, that is to say an offence against his privacy. The defendants requested the relevant investigating court to discontinue the proceedings – the public prosecutor joined the request. The investigating court dismissed the request, and declared the investigative phase concluded. On appeal, the Audiencia Provincial decided to discontinue the proceedings and strike the case out.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all domestic remedies, as required by Article 35 § 1 of the Convention? In particular, were the criminal proceedings an effective remedy within the meaning of this provision in respect of the applicant’s complaint under Article 8 of the Convention? If not, what domestic remedy should the applicant have pursued?
2. Has there been a violation of the applicant’s right to respect for his private life and correspondence, contrary to Article 8 of the Convention? In particular:
(a) Did the transmission of the applicant’s emails to the political party and their subsequent disclosure interfere with the applicant’s right to respect for his private life and correspondence?
(b) Given that the political party concerned had access to the applicant’s emails, and having regard to the disclosure of the applicant’s full name and the content of his emails as well as to the decisions of the domestic courts to discontinue the criminal proceedings brought by the applicant, did the domestic courts fail to secure to the applicant the enjoyment of a right enshrined in Article 8 of the Convention? In this connection, having regard to the State’s positive obligations under Article 8 of the Convention, did the competent national authorities strike a fair balance between the competing interests at stake?
The parties are invited to submit information and supporting documents on the internal regulations governing the use of the political party’s email accounts, and to clarify the political party’s policy and practice to inform their members of such regulations and terms of use. The applicant is also invited to clarify whether he had been duly informed of such regulations, and when he withdrew his membership of the political party.
Full & Egal Universal Law Academy