Legal Professional Privilege in the Digital Age: Recent Case Law of the ECtHR and the Core Principles That Should Govern Searches

By Giorgos Kazoleas, Lawyer

The protection of legal professional privilege is a fundamental pillar of the right to respect for private life and correspondence (Article 8 of the ECHR), as well as of the right to a fair trial (Article 6 of the ECHR).


In recent years, as the use of digital means in the practice of law has become firmly established, the European Court of Human Rights (ECtHR) has delivered important judgments focusing mainly on the digital age, searches of law offices and the surveillance of communications between lawyer and client.

Set out below is a selection of ECtHR case law on such matters:

Seizure and retention of vast amounts of lawyers' digital data

In Kırdök and Others v. Turkey (3 December 2019), the national authorities seized all the hard drives and digital files of a law office in the course of an investigation, without distinguishing between the documents relating to the case and the confidential files of other clients.

The Court found a violation of Article 8. It stressed that wholesale seizure without specific filters to protect the confidentiality of clients unconnected with the investigation is disproportionate.

In particular, the Court noted that, once the applicants had requested the return of the digital data, invoking the professional privilege attaching to communications between lawyers and their clients, the judicial authorities were under a statutory obligation to assess the seized data promptly and to return to them those protected by that privilege, or to destroy them, as appropriate.

The judgment underlines the need for strict procedural safeguards when electronic data held by lawyers is searched, finding in this instance that the particularly strict scrutiny required for measures affecting data protected by lawyer-client privilege had not been applied.

Police access to smartphone data containing a client's communications with his lawyers

In Saber v. Norway (17 December 2020), the applicant's mobile phone was seized by the police in the course of a criminal investigation against two persons for conspiracy to murder him. The police created an exact copy (a "mirror image") of the device in order to examine its contents.

The applicant argued that his phone contained correspondence with two defence counsel in another case in which he had been a suspect (proceedings which ended with the charges against him being dropped). He argued that the procedure for searching and seizing the data on his device, which made access to his correspondence with his lawyers possible, had violated his rights.

The Court found a violation of Article 8 of the Convention. Even though there was no basis on which it could determine whether legal professional privilege had actually been infringed, the ECtHR held that the lack of foreseeability in this case, owing to the lack of clarity in the legal framework and the absence of procedural safeguards relating specifically to the protection of legal professional privilege, already fell short of the requirements flowing from the criterion that the interference must be "in accordance with the law".

Seizure of a lawyer's laptop and smartphone

In Särgava v. Estonia (16 November 2021), the applicant, a lawyer, was suspected of membership of a criminal organisation. The authorities ordered searches of his law firm, his home and his car. In the criminal proceedings brought against him, the lawyer challenged the lawfulness of the seizure of his laptop and mobile phone during the searches, arguing in particular that the information they contained was protected by lawyer-client privilege and that the seizure was therefore unlawful.

The Court found a violation of Article 8 of the Convention. It noted in particular that there was no basis on which it could determine whether lawyer-client privilege had in fact been infringed in the present case. However, the absence of procedural safeguards relating specifically to the protection of lawyer-client privilege did not meet the requirements flowing from the criterion that the interference must be "in accordance with the law".

Core principles that should govern searches

The recent case law of the ECtHR establishes the framework within which national authorities must act in cases concerning the lawyer-client relationship and lawyer-client communications:

  • The sifting of privileged data must be carried out by a judicial officer or an independent body, not by the prosecuting authorities.
  • In any search of a law office, the presence of a representative of the Bar Association is now considered an essential safeguard.
  • The seizure of a lawyer's entire hard drives without filtering and selection of specific data is regarded as an abuse, as it exposes the sensitive data of hundreds of other clients.
  • If a lawyer-client communication is intercepted by mistake, the State is under an obligation to destroy it immediately.

The digital age calls for a specialised interpretation of the scope of activity of the respective investigating authorities, which is to some extent provided by the recent case law of the European Court of Human Rights.

Nevertheless, further refinement and constant vigilance are required – including on the part of the bodies representing lawyers – so that the mandate of Article 8 of the ECHR for enhanced protection of communications between lawyers and their clients is fulfilled to the greatest possible extent.

* Giorgos Kazoleas is a Lawyer in Cyprus , Managing Partner at Cyprus Law Firm, Legal Experts Cyprus (gkazoleas@legalexpertscy.com)


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