Home Year 2021 Salient legal topics

Establishing the identity of the defendant in pre-trial taking of evidence. A discussion*

Merit Helm
Harju County Court judge

Mati Maksing
Tallinn Circuit Court judge

Introduction

The development of freedom of speech and different types of media have led to new disputes. Everyone can easily post comments and opinions on the internet, including claims and assessments about other persons. If desired, this can be done without disclosing one’s identity. As a secondary phenomenon, this leads to a noteworthy number of court cases in civil courts[1] where a person feels that they have been injured – let us call them the victim – and seeks the establishment of the identity of the commenter, the person who published the allegedly inaccurate information. Unfortunately it is not quite clear whether and how such judicial proceedings are allowed in the nexus between European Union and Estonian legal acts.

Harju County Court judge Merit Helm and Tallinn Circuit Court judge Mati Maksing exchanged thoughts on the subject.

Merit Helm: Estonian law lacks norms that allow the identity of a commenter as a presumptive defendant in a future action to be determined in civil cases. In judicial practice to this point, the identification of the defendant has been enabled by data gathered in the pre-trial taking of evidence under Section 244 of the Code of Civil Procedure. In my estimation, though, these data cannot be gathered on the basis of this provision. In accordance with the first sentence of subsection 244 (1) of the Code of Civil Procedure, pre-trial taking of evidence may be organized by a court ruling during court proceedings at the request of a party or, if good reason exists therefor, also before proceedings are initiated if the opposing party agrees to this or if it can be presumed that evidence could be lost or using the evidence afterwards could involve difficulties. Subsection 244 (3) of the same act stipulates that before the beginning of a proceeding, a person may request that the court order expert assessment in pre-trial taking of evidence if the person has a legal interest in the establishment of 1) the state of a person, or the condition or value of an object; 2) the reason for damage or defect of an object; 3) the costs or measures for elimination of damage or correction of defects of an object. The objective of the pre-trial taking of evidence is to secure and take evidence.

Nor are the specific presumptions stated in regard to taking of evidence in Section 26 of the Code of Civil Procedure fulfilled. A petition oriented at establishing the identity of the defendant is not a petition for taking evidence in pre-trial taking of evidence in accordance with Chapter 244 of the Code of Civil Procedure. The objective of the petitioner in filing a petition for pre-trial taking of evidence for learning personal data is not taking evidence about the content of the matter (the point of Section 244 of the Code) but rather the goal here is to identify the defendant. Thus, in my opinion, there is currently no legal basis in the Estonian legal system to demand such data from their possessor.

Mati Maksing: On the other hand, it should be recalled that Article 17 of the Constitution prohibits defamation. The Supreme Court has interpreted defamation as the making of untruthful assertions as well as inappropriate value judgment[2]. Article 15 (1) of the Constitution guarantees the right of recourse to the courts if their rights and freedoms have been violated. The right to judicial protection enshrined in Articles 13, 14 and 15 of the Constitution cover a person’s right to file a complaint with a court if their rights and freedoms have been violated as well as the obligation of the state to launch due process for protection of fundamental rights, which must be fair and ensure effective protection for the person’s rights[3].

Article 10 of the European Convention for Protection of Human Rights and Fundamental Freedoms stipulates that freedom of expression can be restricted for “protection of the reputation or rights of others”. The European Court of Human Rights has developed extensive practice based on which the right of freedom of expression must be counterbalanced by the right to protection of reputation. Protection of reputation is also in the scope of Article 8 of the European Convention for Protection of Human Rights and Fundamental Freedoms.[4] The ECHR has also clarified additionally that protection of reputation is a civil right protected under Article 6 (1) of the European Convention for Protection of Human Rights and Fundamental Freedoms.[5] The Charter of Fundamental Rights[6] does not mention verbatim protection of honour and good reputation but its Article 7 and 8 do enshrine norms of respecting private and family life and protection of personal data, which similar to the above also have an important connection to the protection of honour and good name.

The Estonian Constitution, ECHR and the Charter of Fundamental Rights do not therefore give grounds for concluding that there might exist in the Estonian legal system any subjective rights whose judicial protection is fundamentally precluded.[7] Thus, in my opinion it is not of determining importance whether effective judicial protection is precluded (or at least hindered) by the lack of a set of norms or some other factor: instead, what is important is that the court be able to ensure effective protection against violation of fundamental rights. Such protection is undoubtedly needed by persons who have been defamed and they must be able to recur to civil court under subsection 3 (1) of the Code of Civil Procedure for the protection of a right or interest that is protected under law.

When filing a petition with the court, the petitioner must state data regarding the counterparty allowing the person to be identified (Code of Civil Procedure clause 338 (1) 1), clause 371 (1) 11). According to judicial practice and legal theory, a court may not start to identify the defendant on the basis of Code of Civil Procedure subsection 338 (3) but rather the scope of application of this provision pertains to situations where an address or other data for the defendant are lacking.[8] Thus, it may be hard for a victim to have recourse to a court already due to the fact that the identity of the commenter is not known.

It would be unconstitutional for procedural law or other set of norms to be designed so that a person cannot defend their fundamental rights in a court. As an interim summary, it can be noted on the basis of the above that we in principle have two options: one is to interpret the provisions of the Code of Civil Procedure to be in conformity with the Constitution in that they enable the gathering of information necessary for identifying the commenter through a petition on the pre-trial taking of evidence (or some other category of petition), and the other option is to admit that the current situation is constitutional.

Merit Helm: The protection of natural persons in regard to processing of personal data is likewise a fundamental right (Article 8 (1) of the Charter of Fundamental Rights, Article 16 (1) of the Treaty on the Functioning of the European Union,[9] Article 26 of the Estonian Constitution). For processing of personal data and ensuring free movement of personal data in the European Union, the General Data Protection Regulation sets out the general norms and principles of the fundamental rights and freedoms of natural persons, especially protection of their personal data[10]. If the data being requested were used solely for fulfilling a judicial function, there would be no reason to be very concerned. In this case, however, the court is solely an instrument and extension that is used to seek data for the use of the victim, who in so doing becomes the new processor of personal data. Thus, the data leave the control of the court and due to lack of domestic norms, the court cannot currently ensure that the person who receives the data will process them legitimately. This runs the risk that the court may inadvertently become an abettor of an abuse which, due to the lack of norms in national legislation, is not able to counterbalance in proceedings the data subject (who cannot themselves control the release of data as a processing operation – this is done by the communication operator at the behest of the court) and the victim’s rights. Based on the above, I believe that there is here no proceeding consistent with the purposes of Article 14 of the Constitution and there are no grounds under substantive or procedural law for counterbalancing the opposing fundamental rights.

In accordance with the General Data Protection Regulation and the practice of the European Court, there are no legal acts suitable for identifying the defendant. It is possible to identify the defendant’s data only if there is a legal framework that envisions “clear and precise rules” governing the scope and application of the relevant measure and establishes minimum requirements based on which the persons whose personal data are concerned have sufficient guarantees allowing the data to be efficiently protected against abuse (reasoning 39 of the GDPR, Article 5 (1) a) and b), Article 6 (1) f). Similar principles were also set out in the Data Protection Directive that preceded the GDPR[11] (Article 7 f)).

It is true that in principle, the victim has a legal basis for processing data – a legitimate interest (Article 6 (1) f) of the GDPR). The European Court has acknowledged that a desire to have recourse to a court is a legitimate interest for the purposes of the provision referred to.[12] In connection to judicial gathering of personal data, the European Court has set out three cumulative conditions in fulfilling which the processing of personal data is legal: first of all, if the processing is necessary for the implementation of implementing the legitimate interests of the controller or a third party’s or parties’ legitimate interests, and secondly if it is necessary for the processing of personal data to take place for the implementation of legitimate interests, and third, it can be done on condition that such interests are not outweighed by the data subject’s interests related to fundamental rights and freedoms.[13]

A thorough guide has been prepared regarding the application of the data protection directive and processing of data.[14] The same principles also apply in the context of the GDPR. According to the reasoning in the regulation, a provision that enables the court to require that data be submitted and transmit that data must set forth specific grounds and conditions for ensuring the protection of the commenter’s personal data and right to privacy. A norm that restricts protection of the data subject must be “clear and precise and balance the rights of the third party and data subject and take into account all principles and obligations arising from the GDPR” (see e.g. points 41 and 45 of the proposal for the GDPR)[15].

The European Court recently decided that Article 6 (1) f) of the GDPR combined with Article 15 (1) of the Electronic Communications Directive[16] must be interpreted in such a manner that it is not contravened by the systematic logging, by intellectual property rights holders and, on their behalf, third parties, of IP addresses of peer-to-peer network users whose internet connection was allegedly used for copyright-infringing activities, and secondly the transmission of the names and addresses of said users to the rights holder or third party so that they could bring an action in civil court for compensation of damage allegedly caused by the users, yet nevertheless on condition that the initiatives of claims of the relevant rights holder or third party are justified, proportional and not abusive and their legal basis is a legislative measure at the national level for the purposes of Article 15 (1) of the directive, which limits the scope of the rules set forth in Articles 5 and 6 of the directive.[17]

Estonian law has no provisions corresponding to the ones established by these decisions. Thus, there is currently a lack of a measure in national civil procedure legislation for ordering personal data to be handed to a third party that would allow claims under civil law to be brought against a natural person being identified using said data. There is also a lack of precise instructions and possibilities for evaluating whether a person seeking an order for submission of data has a sufficient legitimate interest to process the data. The third criterion is also unfulfilled. The basis for obtaining the data must not be abusive, but currently potential abuses are not ruled out. At this point, it is important to note that if the court grants a third party (victim) access to the personal data of another person (the commenter), the court (as the one releasing the data) must ensure that the data are used for legal purposes and that damage is not caused through the use of the data. The possibilities of a court to ensure this must be set forth in legislation.

Mati Maksing: I agree that Estonian procedural law does not include norms that precisely correspond to the criteria formed by European Court judicial practice. However, we must take a broader look at the question and weigh whether the Code of Civil Procedure as a whole and in combination with other procedural guarantees does indeed also offer appropriate ways of resolving matters involving the establishment of the identity of the defendant.

Let us devote attention to the fact that requests to identify a defendant are not in general directed only at learning the name of the person. The situation described in the introduction is characterized by the allegedly inaccurate data being published by way of electronic communication channels. The petitions in relevant requests are often worded so that the court is essentially asked to gather evidence on a certain data transmission operation. Under subsection 244 (1) of the Code of Civil Procedure, evidence gathering is a legitimate purpose of pre-trial taking of evidence.

Under subsection 229 (1) of the Code of Civil Procedure, evidence in a civil matter is any information which is in a procedural form provided by law and on the basis of which the court, pursuant to the procedure provided by law, ascertains the existence or lack of facts on which the claims and objections of the parties are based and other facts relevant to the just adjudication of the matter. According to the list in the first sentence of subsection 229 (2) of the Code of Civil Procedure, it is possible, among other things, to submit documentary evidence, i.e. any documents or other data carriers in a perceptive form which include data on facts relevant to the adjudication of the matter (Code of Civil Procedure, subsection 272 (1). In accordance with the first sentence of subsection 279 (2) of the Code of Civil Procedure, if a person is in the possession of information relevant to the adjudication of a matter, the person shall, on the demand of the court, prepare a document on the basis of the information and submit it to the court. Consequently, a document prepared on the basis of data in the possession of a person (outside the proceeding) and submitted to the court is a certain type of documentary evidence. The victim in essence is seeking the taking of such evidence.

In accordance with the first sentence of subsection 230 (1) of the Code of Civil Procedure, in actions, each party shall prove the facts on which the claims and objections of the party are based, unless otherwise provided by law. If the victim has recourse to a court later, they must assert and, in the case of a counterclaim from the defendant who is the commenter, also prove that precisely the commenter is the author of the specific comment. Thus, in the instance described, the purpose of the petition in the pre-trial taking of evidence is, among other things, to gather evidence for proving the claims that constitute the basis for the future action. In pre-trial taking of evidence in the absence of the counterparty in the proceeding, a court cannot, at least not in general, assess whether a dispute might arise in the subsequent action over the purpose for which the taking of evidence was originally desired.

I would emphasize three other aspects in this connection.

First of all, if the considerations listed above are followed, the condition that evidence could be lost – set out in the first sentence of subsection 244 (1) of the Code of Civil Procedure – is satisfied. According to the first sentence of subsection 111¹ (4) of the Electronic Communications Act, the data specified in subsections (2) and (3) of the same section shall be preserved for one year from the date of the communication if such data are generated or processed in the process of provision of communications services. For the most part, the data that enable identification of a commenter meet the criteria in subsection 111¹ (2) or (3) of the Electronic Communications Act. It also follows that the victim cannot reasonably be expected to perform other time-consuming procedures for determining the identity of a commenter prior to going to court.

Secondly, clause 111¹ (11) 5) of the Electronic Communications Act stipulates the data specified in subsections (2) and (3) of the same section are to be forwarded to a court pursuant to the Code of Civil Procedure. In addition, in Section 114¹ of the Electronic Communications Act oblige As noted above, the first sentence of subsection 279 (2) of the Code of Civil Procedure states as a general norm that if a person is in the possession of information relevant to the adjudication of a matter, the person shall, on the demand of the court, prepare a document on the basis of the information and submit it to the court. The structure and general idea of the Code of Civil Procedure proceed from the approach that the court, in applying subsection 279 (2) of the Code of Civil Procedure, follows all norms of procedural law, including organizing the taking of only such evidence that has relevance in a matter (first sentence of subsection 238 (1) of the Code of Civil Procedure) and refuses taking of evidence if obtaining such evidence would mean a violation of the Constitution (clause 238 (3) 1 of the Code of Civil Procedure). I tend to believe that data and evidence gathered in the pre-trial taking of evidence do not necessarily require special norms compared to other operations in the court’s remit in connection with evidence gathering.

Third, the GDPR is a directly applicable legal act. That means that there must be a legal basis for gathering evidence (see Article 6 of the GDPR) and the processing of the data must meet certain principles (Article 5). Both court and the victim have a legal basis, and the latter has a “legitimate interest” for that purpose. The victim’s interest can be verified in the pre-trial taking of evidence phase and is expressed in the assessment of how potentially successful the claim to be brought in a possible future court dispute is. If the claim has low potential, there is no grounds for gathering data. Moreover, the court can adhere to the principle that data collection should be as little as necessary to serve the purpose (see Article 5 (1) c) of the GDPR).

Merit Helm: As I see it, the lack of conditions and procedure determined by law cannot give a third party or public authority broader powers in a civil court procedure than are provided for personal data processing in proceedings on an offence. The European Court explained in the context of proceedings on an offence that the law of a member state must specify the conditions under which providers of electronic communications services must give competent authorities of that member state access to data at their disposal. To adhere to the requirement of proportionateness, such legal norms must nevertheless provide for clear and precise rules that govern the scope and application of the relevant measure and establish minimum requirements based on which persons it is possible to identify the defendant’s data only if there is a legal framework that envisions “clear and precise rules” governing the scope and application of the relevant measure and establishes minimum requirements based on which the persons whose personal data are concerned have sufficient guarantees allowing data to be efficiently protected against abuse. These legal norms must be legally binding in national law and, above all, they must indicate under what circumstances and conditions a measure requiring processing of such data can be adopted, thus ensuring that the restriction of rights is limited to what is strictly necessary.[18]

The Supreme Court, too, has addressed matters related to collection and processing of communication data in a proceeding on an offence. Analysing the law of the European Union and Estonia and taking into account the practice of the European Court, it found that access to communication data may be enabled only in the case of serious crimes. The Supreme Court considered the latter to be crimes of the first degree and second-degree crimes where sentencing guidelines of up to five years in prison or which were committed using a communication device. The Supreme Court emphasized that deeming a crime serious must be justified separately in each case, specifying the characteristics of the act or the perpetrator that outweigh the unlawful retention of communication data and the violation of privacy caused by access to the data.[19]

Thus, we have a situation that the precondition for gathering the relevant data in a criminal proceeding is the commission of a serious crime, but equivalent data are gathered in civil court proceeding if the petitioner feels that anonymous comments infringe on its honour and dignity.

Mati Maksing: It should be recalled that through conducting a criminal case, the state exercises its penal power, which is part of public authority. In a civil matter, the court must offer everyone effective protection in the event of the violation of their rights. Although the court is also termed a data recipient in clauses 111¹ (11) 1) and 5) of the Electronic Communications Act, the roles of criminal and civil court are different in the situation discussed above. Criminal courts and the bearers of public authority specified in clauses 2–4 and 6 of the same provision are competent authorities for the purposes of the abovementioned European Court practice. When it comes to the exercise of public authority, the proportionateness of a measure that restricts the right of a data subject requires more detailed and clearer regulation, for otherwise a person may find themselves at the whim of officialdom and lacking appropriate guarantees under procedural law. In addition, it must be taken into consideration that a characteristic of proceedings on offences is that communication data are often gathered in the course of surveillance operations. In such a case, data volume and restriction on the rights of the data subject are significantly more extensive.

Reference should be made to, e.g. the finding of the European Court that in order to conduct proceedings on a court dispute, access to a set of data on traffic or location should not be made possible if they could yield information on the communication sessions of a user of an electronic communication device or the location of the end device they are using and make precise conclusions about their private life.[20] However, with a petition aimed at identifying a commenter, the victim does not seek the gathering of such data. The data requested from the website operator or communication undertaking do not enable conclusions to be made about the private life of the commenter. Furthermore, the European Court has ruled that it does not contravene EU’s data protection rules if the data necessary for submitting a request to a civil court are publicly disclosed on the basis of national law.[21]

Merit Helm: The Supreme Court conducted proceedings on a petition for initiating a constitutional review in connection with a lacuna in the law.[22] Both the Chancellor of Justice[23] and the Estonian Association of Information Technology and Telecommunications supported the petition and also believed that there was a missing component in the Estonian legal space. The Ministry of Justice and the Parliamentary Legal Affairs Committee did not support the petition. The Supreme Court did not hear the matter, stating that it was not a relevant norm in the context of the regulation in question under which the county court sent the matter to the Supreme Court.

Another similar case is now under proceedings in the Supreme Court, which Tallinn Circuit Court sent to the Supreme Court seeking that it be declared unconstitutional to fail to provide a purpose, conditions and clear procedure for processing of personal data in civil procedure in order for the court to oblige third parties (processors of personal data) to disclose, without the commenter’s request, the personal data of a person who wrote an internet comment infringing on the rights of another person (including IP address and name of the related person) to the person whose personal rights said comment infringed.[24] A final decision has not yet been made on the matter.

Mati Maksing: The harmonization of judicial practice and aiming it in a carefully considered direction are extremely important and significantly broader than the scope of today’s discussion. I would emphasize that practice is created and shaped by all three instances of the courts, including county courts. Most civil matters in Estonia reach a final decision in the court of the first instance, and pre-trial taking of evidence is no exception in this regard.

Still, it is to be heartily welcomed that, as the court of constitutional review, the Supreme Court is able to influence and express a position in the matters discussed here. After all there are certain restrictions on right of appeal in civil court proceedings. The second sentence of subsection 247 (4) and fourth sentence of subsection 248 (5) of the Code of Civil Procedure combined with the first sentence of subsection 696 (1) rule out the contestation of pre-trial taking of evidence decisions in the Supreme Court. Thus, adjudication of these matters is ultimately in the remit of the country and circuit courts.

Both due to the greater number of matters and judges and possibilities, the courts of the two lower instances cannot ensure such a consistent and uniform practice as does the Supreme Court. For example, about two years ago, Tallinn Circuit Court sought the opportunity of establishing an additional consultant position for the civil chamber; the tasks of this consultant would include preparing and introducing analyses of judicial practice in circuit and county courts, organizing the activity of sector-based working groups and indexing the Circuit Court decisions, but to this point, the courts’ budget for this has not been expanded. Rather, we see from the recent news from the Supreme Court that it is also harder for the Supreme Court to compile analyses of judicial practice.[25]

In previous practice, the Civil Chamber of the Supreme Court essentially accepted, in a situation similar to the one described in the introduction to this discussion, the appropriateness of pre-trial taking of evidence provisions in order to determine the author of a web post that infringed on the personal rights.[26] The same position was referred to by the Supreme Court in a now-resolved constitutional review matter.[27]

Merit Helm: The lack of a norm is not the only problem, though. In judicial practice, the question of protection for the possible counterparty in pre-trial taking of evidence also awaits adjudication. Subsection 248 (2) of the Code of Civil Procedure sets forth that if pre-trial taking of evidence is initiated on the basis of an application which does not contain the name of the opposing party, the court may order that the interests of the future opposing party in the pre-trial taking of evidence be protected by the advocate who has the duty to protect the interests of the future opposing party at the taking of evidence. The court makes a ruling to order payment by the applicant of the advocate’s fee and expenses to the extent prescribed by the State Legal Aid Act and may require that the applicant make, prior to the beginning of pre-trial taking of evidence, a reasonable advance payment to the court’s deposit account. If the advance payment is not made, the court may refuse to initiate pre-trial taking of evidence. The practice when it comes to implementing this provision is very different in the courts of both first and second instance. In proceedings predominantly conducted on the basis of provisions for pre-trial taking of evidence, the representative of the future counterparty has not been appointed by the court. Still, there are court panels who have deemed it necessary to appoint a representative and also require a prepayment of relevant costs. The judicial practice on this issue needs to be made more uniform and courts of higher instance should issue guidance.

In addition (if we grant that it is indeed allowable in the first place to identify the defendant through pre-trial taking of evidence) the question comes up of whether the assessment of whether the information (e.g. comments) on which the petition is based has a defamatory nature and is aimed against the specific petitioner should be made already in the pre-trial taking of evidence phase. In other words, should the court already evaluate the content of the comment as early as the pre-trial taking of evidence phase. Analysis of judicial practice shows that this is not done in the predominant share of cases and the data on all commenters (regardless of content of the comments) is required to be submitted. At the same time, there is also a different kind of practice where the county court evaluated the comments substantively in the pre-trial taking of evidence phase and declined – on the strength of the content of the comments – to process the petition. The circuit court found that the county court acted correctly: “Considering the principles of personal data protection and the fact that evidence is collected for submission in the basic proceedings that follows, it is justified to assess, in deciding whether to initiate pre-trial taking of evidence, how potentially successful the action to be brought in the future is and to proceed in doing so from the principles specified in subsection 371 (2) of the Code of Civil Procedure.“[28]

The idea of pre-trial taking of evidence is to gather data for filing an action; and thus I find that if infringement on rights is not possible at all in the case of these circumstances, the court could also refuse to launch pre-trial taking of evidence regarding such claims and opinions. Unfortunately, as I mentioned, not all courts and judges are of the same mind. However, the practice could be uniform and foreseeable by the parties to the proceedings, so they can critically assess the potential success of the petition before filing a petition for pre-trial taking of evidence to a court. In the situation that has arisen (considering that very different decisions come out of the circuit courts), I find it necessary that the Supreme Court issue its position in this question to ensure harmonization of judicial practice in courts.

Also needing clearer regulation from legislative branch of guidelines from a court of a higher instance is how the court should notify a data subject that their data are being gathered and disclosed. If a court gathers data and discloses them to a third party, the GDPR (Article 12) requires the subject to be notified thereof as required. To this point, courts have not complied with this obligation (at least not in most cases). Probably this is, among other reasons, because there is no clear procedure on who must notify the subject and how.

Mati Maksing: I agree that in adjudicating a petition filed in pre-trial taking of evidence, the court verifies whether it is founded. This is the general principle of civil procedure and definitely applies in a situation where the counterparty does not take part in the proceedings. A court can decide not to take evidence if the need to take the evidence was not sufficiently founded, both in pre-trial taking of evidence and in the course of taking evidence in the main procedure.

Current procedural law gives county courts in particular a broad discretion in deciding in what situations the collection of the necessary data to identify the commenter (and prove their actions online) is justified. If we go by general principles on exercise of the court’s powers of discretion, including the burden of proof, there is no obvious and no direct reason that the existing provisions should be supplemented. I believe that being too precise in procedural provisions could be an impediment to resolution of new situations that are still unforeseeable. We should not make too much of the fact that there are special norms in connection with pre-trial taking of evidence for intellectual property rights: above all, it is not necessary to regulate, with the same level of precision all other fields where pre-trial taking of evidence is appropriate.

The question of protection of the counterparty can be decided on by the court arranging pre-trial taking of evidence likewise in the context of procedural law and weighing the facts of the matter.

Undoubtedly the question we are discussing is debatable, and literature on the law also admits as much[29]. I believe initiating pre-trial taking of evidence is however justified in a situation where the victim lacks other effective legal protection options and the court finds it just and suitable to determine the circumstances. Still, courts could refrain from letting matters involving identification of a commenter from becoming a separate category of proceedings of matters on petition, seeing as the Code of Civil Procedure does not envision such a procedural option.

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* Merit Helm would like to thank her colleague Kairi Piirisild, who has been of great assistance in both writing constitutional review petitions and this article.

[1] Courts of the first instance received the following totals of matters requesting initiation of pre-trial taking of evidence (both for identifying defendants and obtaining their data and on other pre-trial evidentiary considerations): 29 in 2017, 37 in 2018, 80 in 2019, 90 in 2020 and 85 in 2021. The vast majority were requests for obtaining the defendant’s data.

[2] RKTKo 3‑2‑1‑159‑14, p 10.

[3] RKÜKo 3‑1‑1‑88‑07, p 41.

[4] Practice starting from EIKo 9815/82, Lingens vs. Austria, 08.07.1986. For more detail and references, see ECHR practice M. Pild, P. K. Tupay, K. Turk. Komm. § 17/2. – Constitution of the Republic of Estonia. Annotated edition. 5^th edition. Tallinn: Sihtasutus Iuridicum, 2020.

[5] EIKo 31382/96, Kurzac vs. Poland.

[6] Charter of Fundamental Rights of the European Union. – 2012/C 326/02.

[7] For more on this, see RKHKm 3-3-1-2-02, p 1.

[8] I. Parrest, I. Alas. Komm. § 338/3.3.c.– Tsiviilkohtumenetluse seadustik II. (Code of Civil Procedure II) Annotated edition. Tallinn: Juura 2017.

[9] Treaty on the Functioning of the European Union. – 2012/C 326/01.

[10] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation). – OJ L 119/1.

[11] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. – OJ L 281.

[12] EKo C‑13/16, Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde vs. Rīgas pašvaldības SIA “Rīgas satiksme“; EKo C-597/19, Mircom International Content Management & Consulting (M.I.C.M.) Limited vs. Telenet BVBA, p 108, 109.

[13] EKo C‑13/16, Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde vs. Rīgas pašvaldības SIA „Rīgas satiksme“.

[14] See https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf (08.02.2022).

[15] The implementation of Article 7 of the data protection directive and requirements established on its basis in national norms was discussed in detail in e.g. EKo C-40/17, Fashion ID GmbH & Co.KG vs. Verbraucherzentrale NRW eV., in paragraphs 55 and 95; and in EKo C‑13/16, Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde vs. Rīgas pašvaldības SIA „Rīgas satiksme“, in paragraphs 28–33.

[16] Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Privacy and Electronic Communications Directive). (In the wording amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009) – ELT L 337.

[17] EKo C-597/19, Mircom International Content Management & Consulting (M.I.C.M.) Limited vs. Telenet BVBA, p 3 of the resolution.

[18] EKo C-746/18, H. K. vs. prosecutor’s office, Republic of Estonia, p 48 and earlier decisions referred to therein.

[19] RKKKo 1-16-6179, p 64.

[20] EKo C-746/18, p 45 of the reasoning, and p 1 of the decision.

[21] EKo C-13/16, p 34.

[22] RKPJKm 5-21-14.

[23] See also the thorough opinion of the Chancellor of Justice. –https://www.oiguskantsler.ee/sites/default/files/field_document2/Arvamus%20p%C3%B5hiseaduslikkuse%20j%C3%A4relevalve%20asjas%20nr%205-21-14.pdf (08.02.2022).

[24] Constitutional review matter no. 5-21-30.

[25] See https://www.riigikohus.ee/et/uudiste-arhiiv/riigikohus-peatab-kohtupraktika-analuuside-valdamise (08.02.2022).

[26] RKTKo 2-16-14655/24.

[27] RKPJKm 5-21-14, p 22.

[28] TlnRnKm 2-19-12734.

[29] G. Lepik, U. Volens. Komm § § 244/3.1.3.2 subclauses b, c and g. – Tsiviilkohtumenetluse seadustik I (Code of Civil Procedure I). Annotated edition. Tallinn: Juura 2017.