DIGITAL RIGHTS: Session IV – Legal Professional Privilege under the E-Evidence Regulation: Putting the Safeguards to the Test
After the break, Federico Cappelletti, a criminal lawyer at Studio Legale Cappelletti in Venice and co-head of the Observatory on European Law at the Union of Italian Criminal Chambers, devoted his presentation to the protection of legal professional privilege in communications between lawyers and clients under the e-Evidence Regulation, devoted his presentation to the protection of legal professional privilege in communications between lawyers and clients under the e-Evidence Regulation. Recalling that this confidentiality constitutes a fundamental guarantee of the right to a fair trial, he highlighted the practical difficulties involved in identifying and protecting privileged communications before they are accessed by the investigating authorities. He called for the introduction of mechanisms for early detection, the temporary seizure of sensitive data and independent judicial oversight, to prevent information covered by legal professional privilege from being used before a decision on its protected status has been made.
The concluding discussions highlighted a shared view: whilst the e-Evidence Regulation addresses a genuine need to adapt investigative tools to the digital environment, its success will depend largely on national implementation arrangements, the robustness of the remedies available to data subjects, and the Member States’ ability to ensure a high level of protection for fundamental rights. The speakers also emphasised the need to continue considering how the Regulation interfaces with other European instruments currently under review, notably the European Investigation Order, Europol and Eurojust, in a context where technologies are evolving more rapidly than the legal frameworks governing them.
Artificial intelligence and criminal justice: what safeguards are in place to protect fundamental rights?
In the absence of Andrea Cavaliere, a member of the Executive Council of the Union of Italian Criminal Chambers, his presentation was delivered by Federico Cappelletti. This presentation provided an in-depth analysis of the challenges posed by the rise of artificial intelligence in judicial systems, emphasising the safeguards essential to the protection of fundamental rights.
Starting from the premise that technology is never neutral, the speaker emphasised that artificial intelligence systems now influence the way in which information is collected, organised and analysed during investigations and legal proceedings. This development calls for greater vigilance to ensure that the fundamental principles of a fair trial are upheld.
Several areas of concern have been identified. In particular, the use of biometric recognition technologies has been highlighted as one of the major challenges of the coming years, owing to its particularly intrusive nature and the questions it raises regarding the regulatory framework for judicial oversight. The defence’s access to the technical information necessary to understand and challenge the results produced by automated systems was also highlighted as an essential condition for a fair trial.
The presentation also sought to examine the delicate balance between the protection of trade secrets and the requirements for transparency that must prevail when a technological tool is likely to influence a judicial decision. The speakers emphasised that the defence must have access to the necessary information to verify the reliability of the systems used and to discuss the results effectively.
In addition to these findings, several courses of action have been proposed. One of these concerns strengthening human oversight in the use of high-risk systems. According to Andrea Cavaliere, human supervision cannot be purely a formality: it requires users to have the necessary skills to understand how the tools work, to identify any limitations and, where necessary, to question or correct their results.
Particular attention has also been paid to the ‘right to an explanation’, enshrined in the European AI Act. This right is intended to enable data subjects to understand the role played by an artificial intelligence system in a decision affecting them and to have access to the information necessary to effectively exercise their rights. With this in mind, the traceability of automated processing, access to relevant technical documentation and the possibility of seeking independent expert advice are essential safeguards.
Finally, the presentation highlighted the importance of training for legal professionals. Judges, lawyers, investigators, and experts will not only need to acquire new technical skills, but also be able to keep their knowledge up to date in a constantly evolving technological environment. The achievements of the Digital Rights project were thus presented as a solid foundation for developing sustainable training and certification schemes at European level.
In conclusion, Andrea Cavaliere emphasised that technological innovation can only constitute progress for the justice system if it is accompanied by effective, transparent and verifiable safeguards. Whilst artificial intelligence is set to play an increasingly significant role in legal proceedings, its development must remain at the service of the rule of law, the adversarial process and the protection of fundamental rights.
During the ensuing discussion, Lorenzo Salazar raised a particularly practical question regarding the effective implementation of the proposed safeguards to protect communications covered by professional secrecy. In particular, whilst questioning the practical feasibility of the solutions put forward by Federico Cappelletti, he highlighted the difficulties that a rapid revision of the regulation would entail and considered how practices might be developed through institutional and professional dialogue.
In response, Federico Cappelletti acknowledged that it was still too early to draw lessons from the implementation of the e-Evidence Regulation, as there was not yet sufficient hindsight. He did, however, point out that the main risks had been identified even before it came into force and emphasised the importance of the work carried out by research projects, specialist conferences and professional associations in anticipating difficulties and proposing practical solutions. In his view, improving the framework will depend above all on ongoing dialogue between legal practitioners, their representative organisations and the European Commission, to highlight the difficulties encountered in practice. Finally, he emphasised that any amendment to the European legal framework would remain complex in the short term due to the diversity of the national systems concerned.
To conclude the session, Chryssa Mela opened a discussion among the speakers on the following question: ‘Can the New E-Evidence Framework Deliver Efficiency without Undermining Defence Rights?’. The discussions highlighted the need to balance the effectiveness of cross-border investigations with the protection of fundamental rights. Cassandra Mabille, Gwen Jansen-de Wolf and Federico Cappelletti, in particular, emphasised the importance of effective remedies, the protection of professional secrecy and the maintenance of judicial review to safeguard the rights of the defence.
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