The General Court’s judgment in T-36/23 Stevi and The New York Times Company v European Commission delivered today has stirred renewed attention to a growing grey area in transparency law: the legal status of digital communications that are informal, transient, and often unrecorded.
At issue were text messages allegedly exchanged between the Commission President and the Pfizer CEO during vaccine negotiations. The Commission claimed it did not possess any such documents. The Court disagreed—not by declaring that text messages must always be treated as public records, but by finding that the Commission failed to plausibly account for their absence in light of public evidence suggesting they once existed.
This case is not just about one SMS chain. It reveals a deeper institutional problem: the lack of consistent legal standards for how informal digital communications—texts, encrypted apps, short-lived messages—are to be treated under freedom of information rules. Across jurisdictions, there is mounting confusion. When is a message too short-lived to matter? Does retention depend on content, context, or classification? And above all, who decides?
This is not a call to treat every message like an official communiqué. Format may very well matter. So might intent, urgency, or the degree of formality. But what we cannot afford is a legal vacuum—where governments can invoke ephemerality as a shield against transparency, or where public access rights hinge on assumptions about what counts as a “real” document.
The Court rightly affirmed that transparency cannot be defeated by institutional vagueness. But it also left behind an open question—how should the law treat digital communications that blur the line between personal, informal, and official?
Until legislators and institutions draw that line more clearly, the public’s right to know remains at the mercy of uncertain practices—and perhaps, of vanished messages.
