New Technologies and the European Court of Human Rights

This article summarises key themes and important judgments concerning new technologies and the European Convention on Human Rights (ECHR)

I. Key Themes

The rapid development and widespread adoption of new technologies has presented significant challenges to human rights protection, notably in the realm of privacy and freedom of expression. The European Court of Human Rights (ECtHR) has had to grapple with balancing these rights against legitimate state interests, such as national security, crime prevention, and protection of reputation.

Key themes emerging from the case law include:

• Right to Privacy (Article 8): The ECtHR has consistently emphasised the importance of safeguarding private life and correspondence in the digital age. This encompasses issues like data retention (e.g., DNA databases, fingerprints), electronic surveillance, and the use of technologies like GPS tracking, facial recognition, and hidden cameras. A key consideration in these cases is the "quality of law" – legislation authorizing such measures must be clear, accessible, and provide adequate safeguards against abuse.
• Freedom of Expression (Article 10): The internet has become a vital platform for exercising freedom of expression. The ECtHR has addressed issues like liability for online content, blocking of websites, and the use of hyperlinks. The Court has stressed the importance of balancing freedom of expression against the protection of other rights, such as reputation and privacy.
• Right to a Fair Trial (Article 6): The use of evidence obtained through new technologies in criminal proceedings has raised concerns about fair trial rights. The ECtHR has examined issues like the admissibility of evidence obtained through surveillance or data retention, and the right to challenge the use of such evidence.
• Emerging Technologies: The ECtHR is increasingly confronted with cases involving newer technologies, such as facial recognition technology and mobile applications. The Court has emphasised the need for careful scrutiny and robust safeguards to ensure that these technologies are used in a manner compatible with human rights.

II. Important Ideas & Facts

A. Data Retention & Surveillance:

• Indefinite retention of personal data: The ECtHR has found violations of Article 8 in cases of blanket and indiscriminate retention of biometric data (S. and Marper v. the United Kingdom, Gaughran v. the United Kingdom). The Court has stressed the need for safeguards, such as time limits and the possibility of review.
• Secret Surveillance: The ECtHR has found violations of Article 8 in cases where legislation governing secret surveillance lacks sufficient safeguards against abuse (Roman Zakharov v. Russia, Szabó and Vissy v. Hungary). The Court has emphasized the need for independent authorization and oversight, as well as clear rules on data storage and destruction.
• Lawfulness of Surveillance Measures: The ECtHR has repeatedly stressed that surveillance measures, whether traditional or involving new technologies, must have a clear legal basis and be "in accordance with the law" (Uzun v. Germany, Ben Faiza v. France). This includes measures like GPS tracking and access to telecommunications data.

B. Freedom of Expression Online:

• Liability for User-Generated Content: The ECtHR has held that internet portals can be held liable for offensive user-generated content, particularly in cases where they fail to take timely steps to remove such content (Delfi AS v. Estonia). However, the Court has also cautioned against imposing excessive liability on online platforms that could chill freedom of expression.
• Blocking of Websites: The ECtHR has found violations of Article 10 in cases where the blocking of websites was arbitrary, disproportionate, or lacked proper safeguards (Ahmet Yıldırım v. Turkey, Cengiz and Others v. Turkey). The Court has emphasized the need for judicial oversight and the least restrictive means to achieve legitimate aims.
• Hyperlinks: The ECtHR has recognised the importance of hyperlinks for the free flow of information on the internet and has held that individuals posting hyperlinks should not be automatically held liable for the content they link to (Magyar Jeti Zrt v. Hungary).

C. Other Notable Judgments:

• Right to be Forgotten: The ECtHR has recognized the right to be forgotten in certain circumstances, particularly where sensitive information about an individual is no longer relevant or of public interest (Hurbain v. Belgium, Biancardi v. Italy). However, the Court has also stressed the need to balance this right against freedom of expression and the public interest in accessing information.
• Facial Recognition Technology: In a recent judgment, the ECtHR found a violation of Article 8 in a case involving the use of facial recognition technology to identify and arrest a peaceful protestor (Glukhin v. Russia). The Court highlighted the intrusive nature of this technology and the need for strong safeguards against abuse.

III. Quotes from Sources

• "Any State claiming a pioneer role in the development of new technologies bore special responsibility for ‘striking the right balance’." (S. and Marper v. the United Kingdom)
• "The Court was not convinced that the legislation in question provided sufficient safeguards to avoid abuse. Notably, the scope of the measures could include virtually anyone in Hungary, with new technologies enabling the Government to intercept masses of data easily concerning even persons outside the original range of operation." (Szabó and Vissy v. Hungary)
• "The Court consider[ed] that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a ‘public watchdog’ ..." (Editorial Board of Pravoye Delo and Shtekel v. Ukraine)
• "Such objective liability for using a hyperlink could undermine the flow of information on the Internet, dissuading article authors and publishers from using such links if they could not control the information they led to. That could have a chilling effect on freedom of expression on the Internet." (Magyar Jeti Zrt v. Hungary)
• "The Court also observed that internet sites were an information and communication tool particularly distinct from the printed media, especially with regard to their capacity to store and transmit information, and the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, was certainly higher than that posed by the press." (Société Éditrice de Mediapart and Others v. France)

IV. Conclusion

The case law of the ECtHR demonstrates the complexities of regulating new technologies in a manner that respects human rights. The Court's jurisprudence has established important principles for striking a balance between competing interests, such as privacy and freedom of expression. However, the rapid evolution of technology requires ongoing vigilance and adaptation to ensure that human rights are protected in the digital age.