Author(s) Carlos Alberto da Fonte Videira
Advisor(s) Pedro Madeira Froufe
Year 2017

Synopsis Telephone tapping is a method used for obtaining evidence in secret investigations whose regulation has been subject to a series of alterations in recent years due to its increasing usage. Technological progress and the growth of international organized crime changed communication and behavioural models which consequently led to an inadequacy of traditional investigation methods. Although existing law on the admissibility of telephone tapping is detailed and relatively stabilized, the publication and circulation of wire-tap contents in the social media is not. The Portuguese legal system forbids the media from publishing, by any means, intercepted conversations or communications that are part of a legal process, except if they are not subject to secret of justice and if those involved expressly consent to their publication. In this way, the Legislator pays tribute to the right to speak, as well as preventing privacy intrusion, which constitutes a consecration of fundamental rights by the country’s Constitution. However, the practice has been quite different. The Portuguese people have been systematically confronted with widespread releases of telephone tapping in various social media, namely in the context of big criminal cases involving public figures and politicians concerning non-transparent practices. Notwithstanding the legal prohibition, it is alleged that freedom of expression, freedom of the press, the right to inform and of being informed, also constitute fundamental rights consecrated by the country’s Constitution. Therefore, there is a need for the harmonization of rights, given the similar constitutional values aforementioned, by using a case-by-case approach and by being simultaneously predictive, respecting minimum values of the rights affected. Consequently, a reflexion on arbitration norms, based on the proportionality principle that ensures a greater balance in the exercise of fundamental rights that are affected by the publication and diffusion of wire-tap contents is required. This is the objective of this dissertation. It involves listing a set of rules and principles that need to be observed when publicizing wiretap material, by developing a set of weighting factors, scaling and sorting, to be applied to specific facts and events. Finally, and given the inexistence of effective professional self-regulation mechanisms as well as a lack of sensitivity concerning the specific constitutional values, it is proposed that the application of these norms should be implemented and accompanied by the creation of an independent entity with regulatory and supervision functions.

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