Madeleine McCann: Bobby Hands, Cannes And A Hunger For Publicity
MADDIE WATCH - Anorak’s at-a-glance guide to press coverage of Madeleine McCann
As Leslie Felperin, the excellent reviewer for Variety magazine remarked to me: the newspaper-reading public can’t be persuaded to react in the same way: they care about Madeleine McCann in a serious mood, or in a non-serious mood, they care about Sir Alan Sugar or Simon Cowell. The idea of actually caring about a violent arthouse film investigating the life of Bobby Sands is a very tall order indeed.
Fact and fiction - the story of Madeleine McCann
Posted: 27th, May 2008 | In: Broadsheets, Madeleine McCann Comments (562) | Follow the Comments on our RSS feed: RSS 2.0 | TrackBack | Permalink
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May 27th, 2008 at 9:55 pm
Maria it’s not my post, it is an official statement from the appeal court at Elvora.
May 27th, 2008 at 9:54 pm
391
Garth Says:
May 27th, 2008 at 9:41 pm
#
379
Fair Says:
May 27th, 2008 at 9:32 pm
Garth
If the PJ announced tomorrow that they would (grant their wishes?) televise it, I am 103% sure that excuses would be found in order to not comply…again!
—————-
Fair
I have to disagree with you 103%
As you know they requested a televised reconstruction in the early part of this investigation. Not really the actions of guilty parties is it?
If the PJ did grant their wishes that would then prove to myself and like minded people that they are serious about finding Madeleine McCann.
======================================
Ah!! So one rule for you & another for others??
Why would it prove they are serious about finding Madeleine (to you) if the recon was televised?
May 27th, 2008 at 9:54 pm
Moscow 362, and counting.
http://uk.youtube.com/watch?v=pB53M1kGM3A&feature=related
May 27th, 2008 at 9:53 pm
393
val Says:
May 27th, 2008 at 9:43 pm
384 chenier
That”s what I read at the time. What is the figure then? When you say he told you,
do you know him personally? Can”t be much less than that to be able to employ an Assistant on nearly £50,ooo pa, .
———————————————
Val, I’m quoting from David Smith’s article in the Times. I didn’t say he told me. David Smith said he told me…
May 27th, 2008 at 9:52 pm
401 - Garth
Leave it to Chenier
+++++++++++++++++++
My thought too
May 27th, 2008 at 9:52 pm
This is the interesting bit.
Agree, on a conference in the Criminal Section of the Court of Appeal of Evora
1. In the investigation file No. /, pending Ministry of Public Services in the District of… where investigates the disappearance of MM and the possible occurrence of crimes of kidnapping, murder, exposure or abandonment of minor and concealment of corpse , The Portuguese. Mr Public Prosecutor holder of the process of investigation, invoked under the provisions of art. 15. Article 2 of Law No. 88/89 of September 11, 187. Article 1, alin. a) and 4, alin. a) and b), 252. º-A and 269. thereof No. 1, alin. e) of the CPP.
May 27th, 2008 at 9:51 pm
#
402
Maria Says:
May 27th, 2008 at 9:50 pm
399 Garth
You’re talking common sense…..you silly man! Get real!
————–
I know ……… trust me
and on that note im off…
Bye Maria
May 27th, 2008 at 9:50 pm
387
Maria Says:
May 27th, 2008 at 9:39 pm
382
Ferdinand Says:
May 27th, 2008 at 9:35 pm
367 chenier Says:
Maria:” Or do you know that the GMC is going to impose such a sabbatical on him?
Where’s all this info coming from?”
” Maria, you could always try reading Ferdinands post; the one I was replying to.
His term, not mine…”
Sabbatical was my term. It was your idea, not mine, that a sabbatical could be imposed, and also perceived as imposed by the person in question.
—————————————————————————–
Exactly!! (Do you mean imposed “by the person in question” or “on the person in question”? I think chenier implied that it might be imposed BY the GMC and, by implication, ON Gerry Mccann. By implication, not in so many words!!)
=======================================
I think the best thing is to quote, in sequence, Maria and Ferdinand’s posts.
1. 346
Maria Says:
May 27th, 2008 at 8:59 pm
Sorry. That was the Daily Mail
Another report in the same paper said he had gone back to work with the approval of the GMC. I could give the exact quote if anyone wanted it.
The worry was that his mind might be preoccupied and that therefore he would begin with academic work, working with MRI scans etc. and have limited contact with patients before later (January, I think) going back to full-time work.
No charges have been brought so it would, I suppose, be difficult for his employers not to have back at work. But, I’d be interested to have any links, ade.
*************
Ferdinand Says:
May 27th, 2008 at 9:09 pm
342 Maria Says:
” anyway it seems he’s still not allowed near patients in his “proper” job
————————————————————-
ade, can you tell me how you know GM is not working with patients? ”
This discussion always makes me smile, since I know how many ambitious university doctors would sacrifice their left nut to get a patient free research sabbatical.
**********************************
Ferdinand was the person who claimed that Gerry had a much sought after patient free research sabbatical- presumably in ignorance of Gerry’s description of it as meaning ‘almost nothing in terms of professional advancement’, and Maria was the person who claimed that Gerry would not have had his mind on his work and therefore the GMC had approved him starting off with no patient contact.
Quite why both of them are now pretending that they didn’t say so- assisted, as is so often the case, by not quoting the post they purport to be replying to- is a question only they can answer…
May 27th, 2008 at 9:50 pm
399 Garth
You’re talking common sense…..you silly man! Get real!
May 27th, 2008 at 9:49 pm
#
397
Fair Says:
May 27th, 2008 at 9:47 pm
385
Bloody hell!!
I gave up after 10 minutes reading!
Anyone……..???
————–
Leave it to Chenier
May 27th, 2008 at 9:49 pm
385 Rasputin
It’s GM who might be given a sabbatical…not us!
Just gloating that someone else’s post is so long………..
May 27th, 2008 at 9:48 pm
381
val Says:
May 27th, 2008 at 9:33 pm
———–
Wouldnt it be good for everyone involved in this investigation if the PJ and the McCanns could agree to this reconstruction firstly to establish the movements of the tapas9(so as to sastisfy the PJ) followed by a reconstruction with actors to be televised to aid the search for their daughter?
Work together and move forward.
May 27th, 2008 at 9:47 pm
392 whoops
OK Miss! (or Sir?)
You know those Peter and Jane books so well. Teacher? Mind you, well out-of-fashion now, I should think?
Bet young Ciara hasn’t even heard of them??
May 27th, 2008 at 9:47 pm
385
Bloody hell!!
I gave up after 10 minutes reading!
Anyone……..???
May 27th, 2008 at 9:45 pm
387 Maria Says:
Sabbatical was my term. It was your idea, not mine, that a sabbatical could be imposed, and also perceived as imposed by the person in question.
—————————————————————————–
” Exactly!! (Do you mean imposed “by the person in question” or “on the person in question”? ”
I mean “perceived as imposed by the person in question”. I. e. if you get a sabbatical, you wouldn’t say that it is imposed on you.
May 27th, 2008 at 9:45 pm
384
Hi Maria
I wiggled myself out of a dilemma by quoting a Dutch proverb.
Brilliant, don’t you think so?
May 27th, 2008 at 9:44 pm
386 val
No. Read my earlier post. There are lots of extracts from the press in Dec. He went back to work with limited contact with parents but with the full intention that he would be working normally in January 2008. All the reports said this. That was his agreement with the hospital.
If there are links which show this didn’t happen, fine. I just can’t find any. GM agreed, OF COURSE (!) that any patients who didn’t want to be seen by him would see another consultant.
As far as I know, but one could try (sneakily!) to check tomorrow, he is working, or certainly has been, with patients.
May 27th, 2008 at 9:43 pm
384 chenier
That”s what I read at the time. What is the figure then? When you say he told you,
do you know him personally? Can”t be much less than that to be able to employ an Assistant on nearly £50,ooo pa, .
May 27th, 2008 at 9:43 pm
Maria-beware ankle snappers remember? Don’t get yourself in a corner-just be yourself-I, and others are interested in your ideas and opinions.
May 27th, 2008 at 9:41 pm
#
379
Fair Says:
May 27th, 2008 at 9:32 pm
Garth
If the PJ announced tomorrow that they would (grant their wishes?) televise it, I am 103% sure that excuses would be found in order to not comply…again!
—————-
Fair
I have to disagree with you 103%
As you know they requested a televised reconstruction in the early part of this investigation. Not really the actions of guilty parties is it?
If the PJ did grant their wishes that would then prove to myself and like minded people that they are serious about finding Madeleine McCann.
May 27th, 2008 at 9:40 pm
371
Garth
[..] “Afterall, what have the Pj got to worry about?” [..]
Amaral['s book]?
May 27th, 2008 at 9:40 pm
381-I think they may realise that they too could be charged with negligence-If they did what the McCanns did theyare just as guilty IMO-they were just lucky IF…there was an abductor.
May 27th, 2008 at 9:39 pm
378 S Davis Says:
” If the PJ do not charge the Drs McCann with child neglect, does that make it OK to leave very small children alone at night (for hours at a time) in an unlocked house while you dine & wine elsewhere? ”
I don’t think the opinion of the PJ matters in any way. Some people will continue to think it’s OK, while others think it’s not. BTW it’s not up to the police anyway, but to the prosecutor.
May 27th, 2008 at 9:39 pm
382
Ferdinand Says:
May 27th, 2008 at 9:35 pm
367 chenier Says:
Maria:” Or do you know that the GMC is going to impose such a sabbatical on him?
Where’s all this info coming from?”
” Maria, you could always try reading Ferdinands post; the one I was replying to.
His term, not mine…”
Sabbatical was my term. It was your idea, not mine, that a sabbatical could be imposed, and also perceived as imposed by the person in question.
—————————————————————————–
Exactly!! (Do you mean imposed “by the person in question” or “on the person in question”? I think chenier implied that it might be imposed BY the GMC and, by implication, ON Gerry Mccann. By implication, not in so many words!!)
May 27th, 2008 at 9:39 pm
374 Maria
In this instance, Gerry would NOT be seeing Patients. In fact, when he returned to
Glenfields I think it was on the basis that he didn”t see Patients until or unless
his arguido status is lifted. With the Grant, the NHS is no longer paying him and he
would just have use of a Laboratory.
May 27th, 2008 at 9:37 pm
Nicked this from the Pink Panther at arguidohell, thought you might find it interesting, hope it’s OK Duncan.
Judgments TRE
Judgement of the Court of Appeal
Evora
Procedure:
111/08-1
Rapporteur:
CARDOSO RIBEIRO
Descriptors:
SMS - SERVICE OF MESSAGES CURTAS
MMS - MULTIMEDIA SERVICES IN MESSAGES
DATA CONTENT
PRIOR AUTHORIZATION ORDER
Date of agree:
04/29/2008
Votes:
UNANIMIDADE
Full Text:
S
Half Procedure:
CRIMINAL APPEALS
Decision:
NOT PROVIDED
Summary:
1 - The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.
2 - The data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past, because that embodies a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into liability crime (Article 192. º and 194. Penal Code), who has (have) done or allowed to consummate consumasse. Because these can only be achieved by placing prior technical means of interception and recording of the content of messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.
3 - Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art . 187. Of the CPP.
Decision Full Text:
Agree, on a conference in the Criminal Section of the Court of Appeal of Evora
1. In the investigation file No. /, pending Ministry of Public Services in the District of… where investigates the disappearance of MM and the possible occurrence of crimes of kidnapping, murder, exposure or abandonment of minor and concealment of corpse , The Portuguese. Mr Public Prosecutor holder of the process of investigation, invoked under the provisions of art. 15. Article 2 of Law No. 88/89 of September 11, 187. Article 1, alin. a) and 4, alin. a) and b), 252. º-A and 269. thereof No. 1, alin. e) of the CPP, promoted, among other steps, if requested at 3 national mobile telephone operators (TMN, VODAFONE and OPTIMUS) to send in digital media (CD or DVD), the complete listings of telephone traffic for calls made and received in the period of time between the day April 28, 2007 until September 9, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following telephone numbers:
(Here are 10 phone numbers)
::::::
— No, not yet identified phone during that on 02 May 2007 sent 14 SMS messages written to GM and other 4 in the days following the disappearance of MM
— If requested from the mobile telephone operator TMN, sending in digital media (CD or DVD) of the complete listing of telephone traffic referring to calls made and received in the period of time between 20:00 M of the day 03 of May 2007 and 12.00 M of the day 04 of May, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following phone numbers:
:::::::::::::
2. However, Mr Judge of Criminal Procedure, by its order of 24.09.2007, did not authorize the shipment on digital media (CD or DVD) of the contents of any message sent or received on SMS or MMS in respect of all the numbers the phone above, for, in his view, this would mean taking note of the contents of the conversation or telephone communication has already made without there being any judicial ruling prior to authorization, and by inexistir legal support for the defendant (see fls. 12 of these file).
3. Inconformado with so decided, the prosecutor brought this action under constant fls.1 to 7, drawing the motivation that made the following conclusions:
“1 - Our dissentimento refers to scholarly order of the Judge M. ° of Criminal Procedure, fls. 2687 to 2689, in that they did not authorize “the consignment on digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS.
2 - There is no reason to distinguish, as the distinguished Judge M. °, the two kinds of communications - content of SMS and MMS traffic and listings of telephone calls received regarding effected. Where the law does not distinguish, because no one is distinguished.
3 - The right to the reserve of their privacy does not run greater risk of being injured by access to the content of SMS or MMS than by knowledge of the precise circumstances of time, place, method and frequency of calls received and made.
4 - If the procedural law refers to the use of communications already made, it expressly for the permit, as follows linear and clearly the requirements of paragraph l of art. 189 of the CPPenal.
5 - To preserve the reserves of their privacy of the interlocutors of SMS or MMS in this case, obviating, through its judicial control, to any improper intrusion that intimacy, simply to Judge M. ° make use of established in paragraph . Paragraph 3 of art. 179 of the CPPenal, subject to own and prior knowledge of their content the ability to use as evidence of SMS and MMS.
6 - By not allowing access to the content of SMS and MMS, the scholarly order infringed the provisions of arts. 179 °, 187 ° and 189 of the CPPenal.
Accordingly, repealing, noted in part, the scholarly order and ordering its replacement by another requesting the three national mobile telephone operators in the consignment digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, in compliance with specified in paragraph 3 of art. 179 °.. ”
4. The appeal came to be accepted by order of 21.12.2007, following a complaint lodged in this ratio (see fls.15).
5. Mr. Judge maintained the order, saying, in essence, the following:
“The taking of knowledge of the content of communications made by SMS or MMS’s, because it is held communication through telephone, necessarily requires the prior judicial authorization and you will result from interception and held authorized by that order on the communication in course.
From my point of view and unless all due respect we can not make any equivalence between data traffic (eg, those on the lists of numbers dialed and received) and data content (those related to the content of communication, the exchanged words) for the purpose of treating the same way and that by the very nature of each other, is not it know that they, on X, the particular time, a communication between the numbers Z and K, in particular place (data traffic) and know what there is nothing, combined or discussed.
Absence any phone legitimately seized also does not seem legal to use the rules concerning the seizure of correspondence failing that, by that way, being relegated to the demands placed on the interception of communication in progress, what would happen if the carrier ordered that send, if technically feasible, the content of those communications made through the phone.
Finally, the argument ’stored in digital form’ refers to communications made by any technical means other than the telephone, eg. e-mail, real-time computer network, etc.., and it is not here, unless all due respect, any application. ”
6. In this instance, the Portuguese. Mr Attorney General, in his scholarly opinion of fls.22 to 97, is the understanding that the appeal should be dismissed as manifestly unfounded.
7. It met the provisions of art. 417. Article 2 of CPP, was not made any response. Harvested legal visas and held the conference, it decides.
8. Question to consider.
Given the conclusions presented by the applicant’s motivation, the issue is to decide only the question whether it is permissible to request the three national mobile telephone operators to refer to digital media (CD or DVD) the content of any message sent, or received by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, with reference to specified periods of time there.
For example:
First of all, interest reporting some lessons on issues relating to secrecy of telecommunications, what is at stake and advance the principles and relevant normação.
The concept of electronic communication is not provided for in the area of criminal law, but is defined in art. . 2 No. 1, alin. a) of Law No. 41/2004, from August 18, which regulates the processing of personal data and privacy in the electronic communications sector. Does this rule is that electronic communication “or sent any information exchanged between a finite number of shares using an electronic communications service accessible to the public.” It is a very broad and comprehensive concept that the law itself considers worth only “for the purposes of this law.”
Rather, telecommunications is a concept that no current law sets. The law uses it, for example, the text of paragraph 2 of art. 194. Penal Code, but not down. Unlike in the past laws, repealed today, setting up telecommunications. Thus, Law No. 91/97, August 1, which defined the basis that the general followed the establishment, management and operation of telecommunication networks , Said in his art. 2. Thereof, that “by telecommunications means the transmission, reception or transmission of signals, representing symbols, writing, images, sounds or information of any nature by wire, for optical systems, for radio and other electromagnetic systems.” However, this law was repealed, except for a small part of its articles, by point a) of art. 127. Of the Law No. 5 / 2004, February 10 (Law of Electronic Communications).
However, the latter law does not define telecommunications. Moreover, this being the degree of legal structural framework of this sector of activity, it is significant that he has not devote any definition of telecommunication, within the definitions listed in your art. 3. Thereof.
Having repealed a piece of legislation that incorporated the first of these definitions, has to do here is a choice of the legislature that, perhaps, chose not to be bound by a legal definition that could quickly become technically outdated. [1]
It should be recalled that in telecommunications services, it is distinguished three species or types of data or information: (i) the so-called data, on the network connection, (ii) the so-called traffic data, functional data necessary for the establishment of and a connection or communication generated by the use of the network (eg. location of the user, location of the recipient, duration of use, date and time, frequency) and (iii) the so-called data content, concerning the contents of the communication or the message [2].
Moreover, since the various telecommunications services used for the transmission of communications verbal or otherwise (written messages, data on packages), the elements inherent to the structure may still in a sequential composition in four times: (i) the stage prior to the statement, (ii) the establishment of communication, (iii) the stage of the communication itself, and (iv) the further communication. For the first time, are essentially on the data, while in the other, it is the consideration of traffic data and content.
The basic data are, in the perspective of users, the information needed to access the network, particularly through the linking individual and for use of their own service - interest here, in essence, the number and data through which the user has access the service.
These elements (such as identifying the user and its postal address) are provided to the operator of the service for the purpose of establishing the agreement (the contract) for connection to their network or assigned by this that (the number of access); data such as personnel who are, the holder on them should have the right to reserve, especially as regards the entry of such elements in public directories (ie, the schedules public telephone or other telecommunication services complementary). This reserve provides that the inclusion of such elements in the lists public should be voluntary.
This reserve on the numbers of post or access - to be right of users - prevents the public dissemination and the consequent possibility of public awareness of the number of access of a user, so, essentially, to avoid, of their own volition, some situations of interference that can occur in cases of harassment trade: constant repetition and disturbing, ‘marketing’ telephone, use of lists of direct advertising by companies and enterprises of polls.
The reservation on the basis of elements, wanted to, in essence, prevent the tranquility of their own interest against possible intrusions or greater by the public disclosure of such information, evidence perhaps, also, moreover, that should not be used, unless explicit authorization other than by the network operator, justifying the existence of such limits as to the disposal of the items for commercial purposes of telephone or other telecommunication services complementary.
Unlike of the basic (elements necessary to establish a basis for communication), which falls short before, preliminary and are instrumental in any communication, called elements of traffic (functional elements of communication), as the elements of such content, already has to do directly with the Commission, either on their identificabilidade, either on the content of the message itself or communication.
The elements or functional data (traffic) required or produced by the establishment of the link through which a communication concrete, with certain content, is operated or transmitted, are the origin, destination and route. These elements functionally necessary to the establishment and management of communication identify, or identifying the communication: when preserved, facilitating the identification of communications between the issuer and the recipient, date, time, the frequency of connections made
Thus vital elements already inherent in the communication, as they will identify in real time or after the event, users, the direct relationship between them over the network, the location, frequency, the date, time and duration of communication, should join the guarantees that are subject to use the service, especially all that respects the confidentiality of communications.
It makes sense that is the subject of secret information that lets you know who talked to whom and the circumstances in which time these conversations took place and the time it took and the frequency with which it happened.
Finally, the elements of content - data on the actual content of the message, the correspondence sent by the use of the network. Having to do with the content, the protection and guarantee against any intrusion, interception or deciphering the message by unauthorized person is a core element of users of the system - and is obliged to ensure the operators, so rigorous, using all technical means , The secrecy of communications services.
It can not fail to take into account that the confidentiality of correspondence and telecommunications raises security firm, entered, first in the constitutional text.
Indeed, according prevented in paragraphs 1 and 4 of art. 34. Thereof, the CRP, the home and the confidentiality of correspondence and other private means of communication are inviolable, and prohibited all the interference of public authorities in correspondence, telecommunications and other media, saved the cases provided by law in matters of criminal prosecution.
The prohibition of interference includes the freedom of sending and receiving correspondence and the prohibition of detention or seizure, as well as interference, which extends not only to public entities but also, and a fortiori, to private entities.
The restrictions are thus allowed only in criminal proceedings and are also subject to law (Article 18. Article 2 and 3) and can only be decided by a judge (Article 32. Article 4).
The matrix constitutional forms, in this thematic area, marked by the contingency of solutions to the ongoing conflict between the unstoppable technological progress and the values inherent in the human person that are always, like a right to speak and communication, corollary of the right to freedom individual.
The guarantee of confidentiality covers not only the content of the letter, but the traffic as such (species, time, duration, intensity of use).
.
Under the requirements of paragraph 4 of that art. 34. Thereof, the right to secrecy of telecommunications involves the ban on devassa of its content and its disclosure by those who have access to them, including the employees of telecommunications services, who runs a duty of professional secrecy, as a guarantee of the right to secrecy of the same telecommunications, which may not be infringed.
This item is all the more relevant constitutional as a matter of criminal prosecution for exceptions to the inviolability of telecommunications are not the rule, or rather, are counter-rule. Indeed, in ordinary law stands, even in matters of criminal procedure, the interference in telecommunications is only allowed in cases of the type of crime correspond to the legal catalogue of crimes whose seriousness and social relevance of social peace that allows interference (see Art. 187. of the CPP).
It has been well in sight, with the prohibition of speech interference, safeguarding the freedom to communicate and a ban on intervening in it.
Hence, in fact, reflecting the growing prominence and sequente protection in shaping those fundamental values such as the Penal Code has charged conduct violation, namely the right of citizens to the statement aside, the secrecy of communications.
Indeed, under the heading of crimes against reserve of privacy, or the devassa of privacy or a violation of correspondence and telecommunications, are typically illegal behavior - art. 192. º and 194. Of the PC.
The secrecy of telecommunications is thus tend absolute, giving only the cases provided by law on criminal procedure, that is, as a means of acquiring evidence.
The security of the reserve of privacy results also ban the use of evidence obtained in violation of the secrecy of privacy.
For the prosecution the CRP provides in art.32. Article No. 8, which “are void all evidence obtained through torture, coercion, harm to physical integrity or moral person, improper intrusion into private life, at home, in correspondence or in telecommunications.
The art.126., Paragraph 3 of the Code of Criminal Procedure considers, in turn, that ‘except as otherwise provided by law, are also void and can not be used, the evidence obtained by intrusion into privacy, with home, in correspondence or in telecommunications without the consent of its owner.
With technological progress, the inviolability of the media and private telecommunications secrecy increasingly linked with the data processing elements or by the side of users involved, in their dealings with telecommunications service providers.
Thus the art. . 4, paragraph 1 of Law No. 41/2004, from August 18, which transposes into national law Directive No. 2002/58/EC of the European Parliament and the Council of June 12 Concerning the processing of personal data and the protection of privacy in the electronic communications sector, states that “companies that offer networks and electronic communications services or to ensure the inviolability of communications and traffic data by means of public communication networks and electronic communications services accessible to the public “and is” forbidden to listen, the installation of listening, storage or other means of interception or surveillance of communications and related traffic data by third parties without the prior express consent of users, except in cases provided for by law “(2).
Paragraph 3 of Article stipulates, however, that “the provisions of this Article shall not prevent the legally authorized recordings of communications and the related traffic data, when carried out under lawful business practice, done for the proof of a transaction commercial or any other communication made under a contractual relationship since the data subject has been informed and given their consent. ” And the No. 4 also authorizes the recordings of communications to and from public services to provide emergency situations of any kind.
In modern transmission systems, registration of personal data on the telephone traffic and billing is done by the corresponding operator of the service at the end of phase dynamics of the flow of dialogue or communication (see, if Portuguese, Articles 6 and 7 of Law No. 41/2004, August 18).
This registration is intended first and foremost to recover from the customer, but can serve for researchers to find items stored in databases on the authors of the communication, the time that was done, the place, the volume and duration of telephone traffic . In such cases, the communications are made, the data shows only the existence or the historical flow of dialogue, that is, the earlier phase dynamics.
The “traffic data” are now defined in art.2. Thereof, al. d) of Law No. 41/2004, from August 18, as “any data processed for the purpose of sending a communication through an electronic communications network or for the billing it”, stating paragraph 2 the art.6. thereof, of this law some of the elements that are part of that concept.
While the data, connecting to the network, are preliminary and instrumental elements of any communication, which are subject to secrecy if the user has requested a confidentiality regime in the service of telecommunications, data traffic are already elements inherent in the communication , Allowing real-time or post identify users, the direct relationship between them over the network, the location, frequency, the date, time and duration.
Users are not only subscribers who have a contract with telecommunications services, as others that have electronic linkage with the number of subscribers.
Law No. 41/2004, still treats the location information that defines [art. . 2 No. 1, alin. e)] as “any data processed in an electronic communications network that indicate the geographical location of the terminal equipment of a subscriber or any user of an electronic communications service accessible to the public.”
Knowledge of data revealing the so-called “mobile location” of the phone of a particular individual shows him on the physical journey that it did - or is doing - or reveals their mobility or stay in one place. In other words, the “mobile location” reveals, through the observation of its connection to the mobile telephone network, the location of the owner of a telephone set. Learn the location cell “has the same view evidence and the same effectiveness of a traditional surveillance by police officers on a particular individual, even though the latter may be more intrusive (to allow anyone to place collect more information, particularly concerning the privacy of the person under surveillance) that the so-called “mobile location.”
The Attorney General’s Office, in its opinion No. 21/2000 (DR, Series II, August 28) in completing 2. Rd, expressed his understanding that the investigation phase of the information, “.. . When attaching to traffic data or the data content, can only be provided to the judicial authorities, by telecommunications operators on the terms and the way in which the law of criminal procedure allows the interception of communications, depending on order or authorization of investigating judge (Articles 187. thereof, 190. º and 269. of paragraph 1, point c) of the Code of Criminal Procedure. ”
Also Gomes Canotilho and Vital Moreira argue in annotation on art. 34. Of the CRP, which guarantee the right to confidentiality of correspondence and other means of private communication (Nos. 1 to 4) covers all kinds of correspondence from person to person (postal letters, printed), covering the same chances of orders that do not contain any written communication, and all telecommunications (telephone, telegram, fax, etc.).
The guarantee of confidentiality covers not only the content of the letter, but the actual “traffic” as such (species, time, duration, intensity of use). Under the rules of art. 34. Thereof lies the so-called “electronic mail” because the insurance covers the correspondence certainly kept the matches via telecommunications.
The sending of electronic messages from person to person ( “email”) meets the conditions of private correspondence. (…) Here the restrictions are allowed only in criminal proceedings (No. 4), and are also subject to law (art.18. Thereof - 2 and 3) and can only be decided by a judge. — Cf. Anotada Constitution of the Portuguese Republic, 2007, vol. I, pp. 544.
The distinction between communications traffic data, and its content is, today’s irrelevant, since the Law 41/2004, of August 18, equates the traffic data to the data content for the purpose of ensuring the inviolability of communications. The assimilation of data content, which are the core of the most fundamental communication, and data traffic in order to protect the secrecy of telecommunications subject to obtaining such data to the system of interception and recording of conversations and telephone communications poured in art. 187. Of the Code of Criminal Procedure.
In terms of the criminal process art.269. Thereof No. 1, al. e) of the Code of Criminal Procedure stipulates that during the investigation it is solely to the investigating judge to order or authorize the ‘interception, recording or recording of conversations or communications, in accordance with Articles 187. º and 189. “.
The art.187. Of the CPP down the admissibility of the interception and recording of conversations or telephone communications, specifying the crimes for which it is possible to carry out bugging. The art.189. Thereof, of the same Code provides for the extension of the scheme provided for in Articles 187. º and 188. Of the talks or communications transmitted by any technical means other than the telephone, including e-mail or other forms of data transmission via telematics, even if they are stored in digital form, and the interception of communications between these.
In other words, it is only possible to intercept electronic communications not telephone the same conditions in which it allowed the conduct of telephone interceptions.
A communication, by its nature is a dynamic reality: vai on one side to another, between a transmitter and a receiver. By definition, while communication can not be saved. If anything, can be saved to register it.
This is the case, for example, with an e-mail. It is a communication networks while travelling in between the computer of origin and destination, but then when it comes to the latter, there is stored in the form of computer file, until it is eliminated.
The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.
Thus, the data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past because, as the Ambassador. Mr Prosecutor - General, embodies such a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into criminal responsibility (Article 192. º and 194. Penal Code), who has (have) done or allowed to consummate consumasse.
It is not so much what the order of support of Mr. Judge defendant has said about the hypothetical possibility of such a technique have taken place because the technical possibility always exist, but the legal impossibility of the data content of the messages and communications or, if they existed, were subject to registration and recording. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.
Nor can the content of messages sent or received possibly through the phones in hand, in the period from the day April 28, 2007 and September 9 of that year, have been subject to interception, registration and recording of any operator , Lacks legal basis, in part, reduced the claim by prosecutors at 1. Rd proceedings and contends that on appeal.
Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art. 187. Of the CPP.
So - without further lengthy considerations - it is said to be that the appeal must be dismissed.
9. Given the above, to judge rejected the appeal by the prosecutor, while maintaining a consequence, the order.
There are owed fees.
(Success by computer and read and reviewed by the rapporteur)
Evora, 2008.04.29
Fernando Ribeiro Cardoso
_____________________________
[1] - Sic, Pedro verdelho, the seizure of e-mail of Criminal Procedure, Journal of Public Prosecution, No. 100, pag.156.
[2] - Opinion No. 21/2000 of the Attorney General’s Office, apud YVES POULLET and FRANÇOISE WARRANT, “Nouveaux compléments au service teléphonique et protection des donnés: à la recherche d’un cadre conceptuel ‘, in Droit de L’ Informatique et des Télécoms, 7éme year, 1990/91, 1, pp. 19 and SS.
May 27th, 2008 at 9:36 pm
369
val Says:
May 27th, 2008 at 9:20 pm
————————————–
Val,
It wasn’t £600,000.
‘He had told me, weeks ago, about the six-figure grant and how it meant almost nothing in terms of professional advancement, but might one day help in the prevention and treatment of heart disease.’
Spam trap is eating the link, but it’s in the Smith article, the Times, December 16, 2007
May 27th, 2008 at 9:35 pm
Totje
Wuff!!
(You did call me a dog earlier today, I think? Still, I know you like dogs……….!)
May 27th, 2008 at 9:35 pm
367 chenier Says:
Maria:” Or do you know that the GMC is going to impose such a sabbatical on him?
Where’s all this info coming from?”
” Maria, you could always try reading Ferdinands post; the one I was replying to.
His term, not mine…”
Sabbatical was my term. It was your idea, not mine, that a sabbatical could be imposed, and also perceived as imposed by the person in question.
May 27th, 2008 at 9:34 pm
369
val Says:
May 27th, 2008 at 9:20 pm
————————————–
Val,
It wasn’t £600,000.
‘He had told me, weeks ago, about the six-figure grant and how it meant almost nothing in terms of professional advancement, but might one day help in the prevention and treatment of heart disease.’
http://www.timesonline.co.uk/tol/news/world/europe/article3040094.ece