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No official access to confidential data through the E-Evidence Regulation


No access to confidential content such as medical data, lawyers' files, press data, data of priests and pastors, data of counselling centres and other confidential information through the E-Evidence Regulation

Medical, legal, ecclesiastical confidentiality and press freedom threatened by e-evidence regulation

The "Regulation on European orders for the release and preservation of electronic evidence in criminal matters", in short the E-Evidence Regulation, is a proposal of the European Commission. According to it, all member states of the EU are to be enabled to oblige providers of telecommunication and internet services to hand over data in criminal proceedings. This also applies to data from other member states and also to cases in which, according to the law of the other member states, no criminal offences have been committed at all. Cloud providers and internet service providers would therefore have to pass on data of their customers to investigating authorities of EU member states.

This data transfer could not be reviewed or prohibited by their own courts, for example by the German court. The data transfer takes place at the request of an EU authority, without the owner of the data having the possibility to object.

A breach of medical confidentiality, as well as confidentiality for other professions such as lawyers, is punishable by up to one year imprisonment under German criminal law under §230 of the Criminal Code. However, medical professional secrecy is structured differently in different EU member states, which means that the German regulations on professional secrecy and data protection could be overlaid by e-evidence.

Due to the introduction of electronic patient records, highly sensitive patient data is stored on clouds by IT companies, which would be obliged by E-Evidence to disclose this data in investigation cases, even if the offence is not illegal in the requested country. "In the case of a legal abortion performed in Germany, which is punishable in another EU country, a public prosecutor of that country can access the internal data of the abortion clinic or practice in Germany," comments the vice-chair of the Free Medical Association, Dr Silke Lüder: "In the future, it would no longer be a state authority of one's own country that decides whether data of one's own citizens are transmitted to another state, but the internet provider, a social network or the small hosting company."

An implementation of the E-Evidence Regulation would therefore not only endanger the trust of patients, put the right of professional secrecy holders to refuse to testify at risk and jeopardise medical confidentiality, but according to Frank Ulrich Montgomery (World Medical Association) also directly prevent the digitalisation of the health system.

We psychotherapists demand an immediate amendment of the e-evidence regulation with the prohibition to request data from the designated bodies.


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