Data Protection, Surveillance and Internet Governance: The Human Rights Perspective. Global Media Forum “From Information to Participation”
Ladies and Gentlemen,
It is a pleasure for me to address you once again at the Global Media Forum. I welcome this year’s theme “From Information to Participation” which is highly relevant to the situation in Europe today.
Across the Continent we observe a decline in conventional forms of democratic participation. Voter turnout in elections and membership in political parties have fallen steadily in recent decades. Especially young citizens are losing faith in the political elite. Lack of trust - in particular in the judiciary - was also a significant factor in the crisis in Ukraine.
Social media are influencing the political debate. But it is still unclear what impact they will have on democracy and participation in the long term.
What is clear is that we need to restore trust in democracy and democratic institutions.
Participation is a fundamental right. And respect of human rights is essential to maintaining democracy and stability. This is what I call “deep security”.
A key question is how the Internet and new information technologies are affecting human rights.
The Internet is changing the way we communicate, work, spend and travel. It connects people globally as well as locally. The role of social media on Tahir square, the Maidan and in Gezi Park was plain to see. The Internet opens up seemingly endless opportunities, not least for the media.
The other side to the new reality is that those who are not connected lose out. They lose out because they cannot fully participate in society. Access to the Internet therefore is a human right.
Consequently, the recent Twitter and YouTube bans in Turkey were clear violations of the right to freedom of expression which is protected by European Convention on Human Rights. Both bans were overturned by the Turkish Constitutional Court - in line with the Convention, and in line with judicial reforms Turkey has carried out in co-operation with the Council of Europe.
Human rights are at risk when new technologies are misused or abused. The increase of racist hate speech online demonstrates the new types of challenges we face. Cyber-mobbing among school children is an equally worrying phenomenon. The Council of Europe’s “No Hate Speech” Movement aims to raise awareness of these dangerous trends and helps young Internet users to resist them.
Two of the most significant and complex new challenges to human rights are data protection and secret surveillance.
Edward Snowden, who participated in two recent debates of the Council of Europe’s Parliamentary Assembly, has certainly shed light on the scale and dimension of modern secret surveillance. His revelations have also shown the increased potential for states to violate people’s privacy. But this does not mean that all secret surveillance is illegal.
The European Court of Human Rights has built a solid case-law on the application of Article 8 of the Convention which protects the right to private life, including the protection of personal data and the protection of personal image. In a landmark case the Court acknowledged the right of states to employ secret surveillance against terrorism. But it also ruled that states, “may not adopt whatever measures they deem appropriate”.
This, the Court said, was due to the danger inherent in surveillance measures “of undermining or even destroying democracy on the ground of defending it”. The ruling came in 1978, five years before Snowden was even born.
Whether the State is violating your privacy through sophisticated surveillance or by going through your wastepaper bin, the basic question remains the same: Is the measure proportionate and is it ultimately necessary?
I confess I was surprised by the remarks of German politicians who I heard saying: “Spying on friends is unacceptable!” If this implies that spying on people who are not your friends is somehow more acceptable, I cannot agree. The question is not which personalities states can or cannot spy on. The key issue is whether surveillance measures are based on clear, democratically adopted rules and are subject to effective judicial scrutiny and parliamentary control.
The measures must be limited in time and scope and those subjected to surveillance must be given a chance to exercise their right to an effective remedy.
These are the basic principles which the Court continues to apply to new cases of surveillance today. It is a good sign that countries including Germany and the UK are now scrutinizing their surveillance rules in parliamentary committees or by specialist watchdog bodies.
The European Convention on Human Rights cannot, of course, provide protection beyond the boundaries of our Continent. Many are calling for new international rules to regulate Internet giants, such as Google and Facebook. So far without success.
I suggest the time has come for a re-think.
The Council of Europe Data Convention of 1981 sets basic human rights standards for processing of data and cross-border flows.
It provides the basis for the EU’s data protection directive and remains the only international treaty of its kind.
Our conventions are open to participation from states world-wide. The United States, for example, is a member of our Cybercrime Convention.
I therefore invite the US to join forces with Europe again. We can work together to update and reinforce the Data Protection Convention. We can make it become the new global standard. This also makes sense economically. Different rules in the US, EU and elsewhere would almost certainly imply more bureaucracy and higher costs.
Ladies and gentlemen,
The way in which human rights are protected on the Internet fundamentally depends on the how the Internet is governed. Since its inception, Internet governance has been a prerogative of the United States. Most people including many Americans now agree this has got to change. But there are many different views on how it should be done.
Nobody should underestimate the risks to Internet security. But I am startled by suggestions to create a European Internet or even national nets in response to security concerns. A fragmentation of the Internet would the worst possible outcome. We don’t need a firewall around Europe. We need a firewall around people’s privacy and personal data.
The Internet is a global public resource. It has to be managed in the public interest and its governance must have global reach. This is only possible through an open, multi-stakeholder approach. We support the European Commission’s initiative to strengthen the existing Internet Governance Forum. The IGF in Istanbul in September should be the occasion to agree a time-table for the next steps towards global governance of the Internet.
Our standards in respect of human rights are included in the recent report by High-Level Panel on Global Internet Co-operation and Governance Mechanisms on which I was invited to participate.
Allow me conclude with two priorities of my next term in office. First; I want the Council of Europe to become more effective in defining remedies to human rights issues in the 47 member states. Media freedom is a major concern. I don’t think we need new rules to regulate the press in Europe. But we do need to be more assertive and develop new measures to get all our member states to fully respect freedom of expression and of the media.
Secondly, I want to bring the process of the European Union acceding the Human Rights Convention to a successful conclusion.
EU Citizens will be able to hold the European Union accountable, ultimately by bringing cases against it to the Court in Strasbourg. The new common legal space will strengthen the protection of human rights across the Continent.
Ladies and gentlemen,
I trust the Global Media Forum will once again be an important inspiration to journalists, activists and politicians in Germany and world-wide. I look forward to your conclusions on the theme of participation. I may also take the opportunity to invite you to the Strasbourg World Forum for Democracy in November. The Forum will be looking at ways to increase the democratic participation, especially of young citizens.
Thank you for your attention.
22 December 2017
Letter to the President of Romania, Klaus Iohannis