Policy Department, Directorate-General for External Policies resolution 193 passed by the UN General Assembly in late 2019 which is an initiative that raises serious human rights concerns and ‘advances Russia’s long-standing goal to replace the Council of Europe’s Budapest Convention’ 194. The new treaty would likely lack the standards balancing the interests of law enforcement and respect for fundamental rights provided by the Budapest Convention, instead facilitating the repression and censoring of political dissent online 195. Other human rights organisations, such as the CoE, also face challenges in some of their member states that weaken the efficacy of their response to the trend of backsliding in human rights and democracy. The most prominent examples can be observed in Russia and Turkey; countries which refuse to uphold many of the organisations’ legal standards and are among the leaders in failing to effectively implement the ECtHR’s judgments, instead taking measures to undermine the Court’s supremacy 196.
3.3
Surveillance in a digital age
The ‘Snowden revelations’ in 2013 have increased concerns about the negative impact of the interception of digital communications on human rights, and triggered numerous responses from different human rights institutions. In particular, surveillance has been a focus of several UN initiatives. A significant part of those responses has been built around the question of adapting the right to privacy to the challenges posed by new technologies. However, threats to freedom of expression, freedom of peaceful assembly, the right to non-discrimination and the right to effective remedy have been also addressed in this context. At the UN level, the ‘Snowden revelations’ have triggered the emergence of ‘the right to privacy in the digital age’ discourse, which has led to numerous resolutions from the General Assembly197 and Human Rights Council 198. These documents reaffirm that human rights standards should apply to the interception of communications and collection of personal data, including certain types of metadata. It was concluded that aggregated metadata ‘can reveal personal information that can be no less sensitive than the actual content of communications and can give an insight into an individual’s behaviour, social relationships, private preferences and identity’ 199. This discourse also resulted in the establishment of a dedicated UN special procedures mandate on the right to privacy 200, which closed a significant gap in the institutional
UN General Assembly (2019), ‘Countering the use of information and communications technologies for criminal purposes’, Resolution A/RES/74/247 194 J. Hakmeh, A. Peters (2020), ‘A New UN Cybercrime Treaty? The Way Forward for Supporters of an Open, Free, and Secure Internet’, Council on Foreign Relations, 13 January. 195 T. Association for Progressive Communications (2020), Open letter to UN General Assembly: Proposed international convention on cybercrime poses a threat to human rights online; Human Rights Watch (2021), ‘Proposed UN Cybercrime Treaty Could Undermine Human Rights’, 18 January. 196 W. Bendek (2020), ‘Are the Tools of the Council of Europe Sufficient to Protect Human Rights, Democracy and the Rule of Law from Backsliding?’ European Convention on Human Rights Law Review, Volume 1: Issue 2; M. Yildirim (2020), ‘Are Turkey’s Restrictions on Freedom of Religion or Belief Permissible?’, Volume 15: Issue 1-2; European Commission (2020), ‘Key findings of the 2020 Report on Turkey’; T. Casier(2018), ‘A Classic Dilemma: Russia’s Threat to Withdraw from the Council of Europe’, Heinrich Boell Stiftung, CoE Committee of Ministers (2020), ‘Supervision of the execution of judgments and decisions of the European Court of Human Rights 2019’, Expression Interrupted (2020) ‘Freedom of Expression and Turkey: Implementation of ECtHR Judgments’. 197 UN General Assembly, ‘Resolution on the right to privacy in the digital age’, A/RES/71/199, 2017. 198 See e.g., UN General Assembly, ‘The Right to Privacy in the Digital Age’, Resolution 68/167, A/RES/68/167, 2013 or Resolution 28/16, A/HRC/RES/28/16, 2015. The list of all resolutions on the right to privacy in a digital age is available here: www.ohchr.org/EN/Issues/DigitalAge/Pages/InternationalStandardsDigitalPrivacy.aspx. 199 U.N. General Assembly, ‘Right to Privacy in the Digital Age’, Resolution A/RES/73/179, 2018. 200 UN General Assembly, ‘The Right to Privacy in the Digital Age’, Resolution 28/16, A/HRC/RES/28/16, 2015. The Special Rapporteur is an independent expert appointed by the Council to examine and report back on a country situation or a specific human rights theme. The Special Rapporteur is mandated to report on alleged violations of the right to privacy, including in connection with the challenges arising from new technologies. 193
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