EU Cross-Border Gathering and Admissibility of Electronic Content Data

Electronic content data is a goldmine of data and information that may be relevant for a criminal investigation. Yet, these data are difficult to fit into the traditional set of evidence, and Member States use various approaches to its gathering and use. This makes the EU cross-border exchange of electronic content data context-sensitive, multilayered, ambiguous; as well as it involves the risks of privacy violations and inadmissibility concerns. Therefore, in order to achieve smooth collection and use of electronic content data, the EU needs to underpin the trust basis required for mutual recognition in this area. This study builds upon the line of research on art. 82.2 TFEU and its potential for implementing a real and multi-directional free movement of evidence regime. In this respect, it is aimed to identify common EU minimum standards for electronic content data, complemented with per se admissibility of evidence gathered accordingly. The study also advocates that with regard to electronic content data, the focus should switch from the specific measure to an overall data category. Such an approach does not intend to harmonise the methods of collecting electronic content data. Instead, any measure targeted at any electronic content data would have to meet an EU common minimum standard.