Clarification of the right of access to information in disclosure orders concerning confidential material

The Prosecution Authority requested the disclosure of traffic data linked to the mobile phone of an injured party in a criminal case. The traffic data are subject to the telecommunications provider’s duty of confidentiality under the Electronic Communications Act. For investigative reasons, the police neither sought the injured party’s consent nor notified him of the request. The Norwegian Communications Authority (Nkom) did not consent to the disclosure. The Prosecution Authority therefore brought the matter before the courts. Under section 118 subsection 2 of the Criminal Procedure Act, Nkom then had to provide a statement to the court, which was to be communicated to the parties.

Before the Supreme Court, the question was whether the injured party was to be regarded as a party to the disclosure order case. The Prosecution Authority argued that notifying the injured party of the disclosure order could undermine its purpose. It further submitted that the injured party was not a party to the disclosure case, and therefore not entitled to be notified of Nkom’s statement.

The Supreme Court did not take a position on whether the injured party – or others protected by the duty of confidentiality under the Electronic Communications Act – was a party to the case under section 118. If the issue of disclosure arises during the main hearing, the injured party will in any event have party-like rights entailing that Nkom’s statement must be communicated. During the investigation and case preparation stages, however, the right to be notified of Nkom’s statement had to be balanced against the interests of the investigation. The injured party and others affected by a disclosure order were therefore not to be notified of Nkom’s statement to the extent that access might be denied under the disclosure rules of the Criminal Procedure Act.

Read the order (Norwegian only) (PDF)

Areas of law: Criminal law; disclosure orders. Sections 118 and 210 of the Criminal Procedure Act

Key paragraphs: 37, 45, 46

Justices: Webster, Thyness, Stenvik, Lund, Steen