Can evidence obtained in breach of GDPR be lawfully used as evidence?

The coming in force of the General Data Protection Regulation dramatically changed the way in which personal data is viewed, considered and ultimately processed. Photo: Shuttestock.COM

The coming in force of the General Data Protection Regulation (EU) 2016/679 (‘GDPR’) in May 2018 dramatically changed the way in which personal data is viewed, considered and ultimately processed by controllers and processors in a variety of fields and industries. This has also resulted in increased awareness in the judicial and legal spheres, and the recent application by the Maltese courts of the ‘right to be forgotten’ in the context of the publication of court judgments on its online portal.

The practice of obtaining evidence through potentially dubious means such as secret recordings, microphones or hidden cameras, is widespread and prevalent, with parties to civil cases doing their utmost to bring their ‘best evidence’ to the court’s attention. But what happens when evidence presented by the parties is obtained illicitly and in potential breach of data protection principles and grounds as expounded in the GDPR?

The recording of a person through a hidden call or video recording without his knowledge and information, constitutes “processing of personal data” which is arguably in breach of Articles 5 (principles) and 6 (grounds) of the GDPR and therefore potentially illegal in terms of the same law. On the basis of this potential ‘illegality’ – can the courts, and should the courts accept such illegally obtained evidence as evidence to be considered in the court’s deliberations?

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