UNSEEN EHF. v. ICELAND
Inadmissible
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
1. The applicant, Unseen ehf., is an Icelandic limited liability company based in Reykjavik. It was represented before the Court by Mr Hafþór Sævarsson, a member of the applicant company’s board of directors. 3. The applicant is a limited liability company based in Iceland. It provides its customers with encrypted email, web chat and video conference services. Its main objective is to provide its customers with services free from illegal invasion of privacy or interception by governmental or corporate entities. 4. On 17 April 2015, the Reykjavík Metropolitan Police (Lögreglan á höfuðborgarsvæðinu) lodged a request before the District Court of Reykjavík (Héraðsdómur Reykjavíkur) requiring that the applicant company be ordered to provide the police with all the data in its possession, from 1 October 2014 to 17 April 2015, concerning three specific email accounts hosted by the applicant company on its website. The police also requested that the court render its decision in the absence of the applicant company and without its knowledge, pursuant to Article 104(1) of the Act No. 88/2008 on Criminal Procedure. 5. By a decision of the same date, the District Court granted the request and held the hearing in the absence of the applicant company and without its knowledge, stating that it was “in the interest of the investigation” by the police. Furthermore, the District Court ordered the applicant company to provide the police with the requested data. On 27 April 2015, the police called the chairman of the board of directors of the applicant company and informed him of the District Court’s decision. 6. The applicant company appealed to the Supreme Court against the District Court’s decision. In its submissions to the Supreme Court, the applicant company maintained, firstly, that the District Court had not divulged a legal basis for its decision to order the applicant company to provide the requested data. Secondly, the applicant company stated that the District Court had most likely applied Chapter XI of the Act on Criminal Procedure No. 88/2008 (hereinafter “the Act on Criminal Procedure”) which included the procedure by which telecommunications companies could be ordered to provide information on telephone calls or other communications to or from a specific telephone, computer or other types of device. The applicant company argued that these rules did not apply, as it could not be considered a telecommunications company. Lastly, the applicant company submitted that the District Court’s decision to hold the hearing in its absence and without its knowledge had not been justified under the conditions laid down in Article 104(1) of the Act on Criminal Procedure. 7. By judgment of 29 April 2015, the Supreme Court (Hæstiréttur Íslands) confirmed the District Court’s decision. In its judgment the Supreme Court referred to Chapter XI of the Act on Criminal Procedure concerning telecommunications companies and stated that the applicant company provided its customers with telecommunications services as defined in the Act No. 81/2003 on Electronic Telecommunications and was therefore a telecommunications company for the purpose of Act No. 88/2008 on Criminal Procedure. 8. The relevant sections of the Act on Criminal Procedure No. 88/2008, at the time, read as follows: “Under the conditions stipulated in Section 83(1) and Section 84(1) a telecommunications company can be required, in the interests of a police investigation, to provide information on telephone calls or other communications to or from a specific telephone, computer or other types of telecommunication devices.” “The condition for taking the investigative actions set out in Sections 80-82 is that it is reasonable to assume that important information can be obtained which could be critical for the police investigation. In addition to the condition in paragraph 1, another condition for taking the investigative actions under Sections 80-82 is that the investigation concerns a criminal act that can carry 8 years’ imprisonment according to law or that important public or private interests so require.” “A court decision is required for taking the investigative actions stipulated in Sections 80-82. However, information pursuant to Section 80 should be provided without a court decision if the person who possesses or owns a telephone, computer or other types of telecommunication device has given unequivocal permission. A court decision shall stipulate to which telephone or telecommunication device it applies or who is the owner or person who possesses the telecommunication device, pursuant to Sections 80 and 81, ... ... The employees of a telecommunications company are obliged to assist the police with the execution of the actions listed in Sections 80 and 81 as necessary.” “In accordance with the provisions of this Chapter, a request may be submitted to a district court for taking certain actions during an investigative stage which will need the involvement of a judge according to other provisions of this Act, including a request that a defendant, a victim or another witness must give a statement under Section 59. In addition to what is stated in the first paragraph, a dispute which concerns the lawfulness of any investigative action made by the police or the prosecution may be submitted to a district court. The same applies to any disputes about the rights of the defendant, his/her defence counsel or a lawyer, including their requests concerning certain investigative actions, or the rights of a victim, his/her representative or legal counsel.” “If a request for an investigative action pursuant to Section 102(1) is made and it is demanded that a hearing be held in the absence of the defendant or the party which the action concerns, the judge shall decide whether to approve the demand. In general it should not be approved unless a judge considers that it has been sufficiently established that prior knowledge of the investigative action by the defendant or the concerned party could harm the investigation. ...” 9. The relevant Section of Act No. 81/2008 on Electronic Communication reads as follows: “For the purpose of this Act the following definitions shall apply: ... 15. Electronic communications: any type of transmission and receipt of symbols, signals, writing, images and sounds, or any sort of communication on lines, by radio or other electromagnetic systems; ...”