Protection of Fundamental Rights in the Age of Digitalization

Protection of Fundamental Rights in the Age of Digitalization Presented by: Prof. Dr. Paczolay Date: 22 April 2024 Protection Of Human Rights - National level: constitution, legislation International level: treaties, conventions, covenants - - e.g. • Universal Declaration of Human Rights 1948 • UN Covenants 1966 Regional level: • European Convention of Human Rights 1950 • American Convention of Human Rights 1969 • Charter of Fundamental Rights of the EU 2009 European Convention of Human Rights - 5 MAY 1949: Statute of the Council of Europe is signed in London - The Treaty of London is signed by Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden and the United Kingdom, founding the Council of Europe - today 47 Member States. - 4 NOVEMBER 1950: The European Convention on Human Rights is signed in Rome marking a new era of respect for human rights in Europe. European Court of Human Rights - 1959 The first group of fifteen judges to the Human Rights Court was elected - 14 November 1960 The Court delivers its first judgment: Lawless v. Ireland - 1 November 1998 Entry into force of Protocol No. 11 to the Convention, instituting "the new Court" - Since it was established in 1959 the Court has delivered more than 21,600 judgments (1959-1998: 837 judgments) Advantages - Facilitation of transparency - New perspectives for freedom of speech - Wider audience - Extended political participation - Access to knowledge in education Case-law of the ECtHR - Internet and Freedom of Expression (Article 10) - Data-protection and the Internet (Article 8) Article 10 of the Convention - FREEDOM OF EXPRESSION • “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” - In other words: • You have the right to responsibly say and write what you think and to give and receive information from others. This includes freedom of the press. Editorial Board of Pravoye Delo and Shtekel v. Ukraine - App. No. 33014/05, 5 May 2011 - Positive obligation to create an appropriate regulatory framework to ensure effective protection of journalists' freedom of expression on the Internet. Stoll v. Switzerland - App. No. 69698/01, 10 December 2007 - The protection of journalists is subject to the provision that they act in good faith and provide reliable and precise information in accordance with responsible journalism. Delfi AS v. Estonia - App. No. 64569/09, 16 June 2015 - The commercial operator of an Internet news portal may be held accountable for offensive comments posted on the portal by users. - 4 criteria for liability • 1. The extreme nature of the comments in question (they violated "human dignity" and were "clearly unlawful"); • 2. The fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal; • 3. The insufficiency of the measures taken by the applicant company to remove the offending comments without delay after publication (6 weeks); • 4. The moderate sanction imposed on the applicant company (EUR 320) Schuman v. Poland - App. no. 52517/13, 3 June 2014 - The publication of false information on the Internet is not protected by the Convention Magyar Jeti Zrt. V. Hungary - App. no. 11257/16, 4 December 2018 - CEN EUR ACA - The applicant company was found liable for posting a hyperlink to an interview on YouTube which was later found to contain defamatory content. - The Court set down elements which need to be considered under Article 10 when looking at whether posting a hyperlink could lead to liability and said that an individual assessment was necessary in each case. - Such objective liability for using a hyperlink could undermine the flow of information on the Internet and that could have a chilling effect on freedom of expression on the Internet Article 8 of the Convention - 1. Everyone has the right to respect for his private and family life, his home and his correspondence. - 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Basic Principles - The protection of personal data is of fundamental importance to a person's enjoyment of his right to respect for private and family life - 4 Private life includes the privacy of communications - The Internet differs as an information tool from the printed press - There might be positive obligations inherent in an effective respect for private or family life Effected Fields - Genetics and Information Technology - Retention of data on National and European databases - 4 Interception of external communications, surveillance - 4 Monitoring of an employee's telephone, e-mail or internet usage - Personal information which was not meant to be posted online Bărbulescu v. Romania - App. no. 61496/08, 5 September 2017 - 4 Private company dismissed an employee – the applicant – after monitoring his electronic communications and accessing their contents. The applicant complained that his decision was based on a breach of his privacy and that the domestic courts had failed to protect his right to private life and correspondence. - The Court found a violation of Article 8, as the Romanian authorities had consequently failed to strike a fair balance between the interests at stake. Big Brother Watch and Others v. the United Kingdom - App. nos. 58170/13, 62322/14 and 24960/15, [GC] 25 May 2021 - These applications were lodged after revelations by Edward Snowden about programs of surveillance and intelligence sharing between the USA and the United Kingdom. The case concerns three different surveillance regimes: • 1. the bulk interception of communications; • 2. intelligence sharing with foreign governments; • 3. the obtaining of communications data from communications service providers. - There was insufficient oversight both of the selection of Internet bearers for interception and the filtering, search and selection of intercepted communications for examination, and the safeguards were inadequate - The regime for sharing intelligence with foreign governments did not violate either Article 8 or Article 10. - The regime for obtaining communications data from communications service providers violated Article 8 as it was not in accordance with the law, and also violated Article 10 as there were insufficient safeguards in respect of confidential journalistic material.