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Summary Data protection and human rights exam notes

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These are exam notes for all the materials covered in the course, sectioned into 5 main areas- human rights, application of human rights online, right to privacy v right to data protection, application of the GDPR and application of the Police Directive 2016/680. I recieved a grade 10 in the exam ...

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  • November 11, 2021
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Human Rights

,Scope of HRs Obligations


Where right applies: Ratione Loci
 Rule: Extra-territorial application of HRs for acts/omissions of state authorities

ECHR

 Art. 1 ECHR
‘Everyone within their jurisdiction’
 Extra-territorial jurisdiction
1. ‘Effective control’ and
2. Legal Space [limitation]
 ‘Effective control’
-The fact of exercising control over territory or people
 Bancovic [2001]
 Legal Space Test
Facts:
-Airstrike where NATO bombed parts of former Yugoslavia
-No boots on the ground
QOL:
-Are airstrikes ‘effective control?’
Judgement:
 [Para 71]: Exceptional character
-Extraterritorial jurisdiction under Art. 1 is exceptional
 [Para 80]: Legal Space Test [‘espace juridique’]
1. Legal Space
-ECHR: regional treaty: operates in legal space of Contracting States
2. Legal Vacuum
-Territory in question must be one that, but for the specific circumstances
[‘effective control’], would be covered by ECHR
-Avoids a vacuum in human right protection
 Result: Former Yugoslavia: not within legal space of the ECHR: no
extraterritorial application
 Al Skeini [2011]
 Legal space test abandoned?
Judgement:
-UK exercised ‘effective control’ over Iraq
-Not in legal space test but accepted extraterritorial jurisdiction
-BUT Boots on the ground
EU CFRs
Art. 51 Charter
-CFRs applies when implementing EU law: usually within EU
 Extraterritorial jurisdiction?
 Schrems II [2020]
-CJEU invalidated EU-US Privacy Shield for violation of GDPR read in light of CFRs



Who has to protect rights: Ratione Personae


 Rule: Sometimes state has positive obligation to protect individuals from acts/omissions of natural &
legal persons
ECHR: Natural persons

 Focus: Art. 2: Right to life
 Osman v UK [1998]
 Criminal acts of individuals
Facts:

, -Applicant: Husband was killed by her sons former teacher and her son seriously wounded
QOL:
Violation of Art. 2 ECHR?
Judgement:
 [Para 115]: Positive Obligation under Art.2
-Positive obligation on the authorities
-Take preventative operational measures to protect individual whose life is at risk from
criminal activities of another
 [Para 116]: Limitation to Positive Obligation
-Obligation cannot impose an impossible/disproportionate burden on authorities;
1. Difficulties policing modern societies
2. Operational choices: made in terms of priorities and resources
3. Police exercise powers respecting due process [fair treatment]
 [Para 116]: The Osman Test
- Authorities violated their positive obligation to protect right to life if:
1. Knew or ought to have known
2. Existence of real and immediate risk to individual’s life from criminal acts &
3. Failed to take reasonable measures within their power to avoid the risk
 Conclusion
-The police did not know or ought to have known
-Lives of Osman family were at real and immediate risk from the teacher
-No violation of Art. 2 ECHR

ECOWAS: Legal persons

 Focus: Art. 24: Right to a satisfactory environment
 ECOWAS, SERAP v Federal Republic of Nigeria [2012]
 Environmental damage by Corporation
Facts:
-Activities of oil industries causing oil spillages in Niger Delta [river]
QOL:
Violation of Art. 24 ACHPRs?
Judgement:
 [Para 100]: Art. 24 is an obligation of attitude and an obligation of result
 [Para 103]: Measures taken by Nigeria: numerous laws passed regulating oil
industry & creation of agencies to ensure the implementation of the laws [attitude]
 [Para 110]: No action taken to hold accountable any of perpetrators [result]
 [Para 111]: Violation by Nigeria of Art. 24


Part 1: Interpretation principles


ECHR Interpretation Principles
1. Autonomous meaning of ECHR terms
-Not necessarily same as domestic law
2. Principle of Effectiveness
-Actual protection of the right in practise [teleological]
3. Evolutive Interpretation
-‘Living instrument’: societal & technological changes
4. Internal consistency between provisions
-ECHR must be read as a whole
5. Margin of appreciation
-Wider where it is a sensitive issue or there is not much consensus
6. European Consensus/Comparative/International law
-Consensus between CoE MSs

 Focus: Article 12 ECHR: Right to marry
 Schalk and Kopf v Austria [2010]
Facts:
 Applicant: Wants to enter into same sex marriage
 Austrian law: marriage only between persons of opposite sex

,  Marriage between persons of same sex is null and void
Judgement:
Interference?
 Para 52: Evolutive Interpretation
-Christine Goodwin, ‘men and woman’: not just biological criteria: includes self-assigned
gender for post-operative transexuals
 Para 55: Internal consistency/grammatical
-Art. 12 refers to ‘men and women’
-All other ECHR Articles grant rights to ‘everyone’ or state ‘no one’ should be subjected
-Choice of wording in Art.12 is deliberate
 Para 58: Evolutive but no European Consensus
-Institution of marriage: major social changes since ECHR adoption
-BUT no European Consensus for same-sex marriage: 6/47 Contracting Parties allow
 Para 60: Comparative [Art 9 EU Charter]
-Art. 9 CFRs dropped reference to ‘men and women’: decision to allow same sex marriage
 Para 62: Wide margin of appreciation
-Marriage has deep-routed social and cultural connotations
-Court will not rush to substitute its own judgement for that of national authorities who are
best placed to assess and respond to the needs of society
 Para 63: Conclusion
-Art. 12 ECHR doesn’t impose an obligation on Contracting States to grant access to same-sex
marriage
=No interference with Art.12 ECHR



Margin of Appreciation
1. No substitution
-ECrHR will not rush to substitute its own judgement for that of national authorities
-National Authorities are best placed to assess and respond to the needs of society
-ECrHR checks decisions with ECHR
2. Wideness of margin
A. Consensus
-Less consensus among Contracting States: wider the margin
B. Sensitive issues
-More sensitive the issue: wider the margin



Part 2: Interference with specific human rights

Right 1: Freedom of Expression [& to hold opinion]


Where:
1. Article 10: ECHR
2. Article 11: EU Charter

Scope:
1. Internal: Freedom to hold opinions
2. External: Freedom to receive & impart information

Interference:
1. Offensive ideas
 ECtHR, Handyside v UK [1976]
-[para 49]:
-FoE applies to information that offends, shocks or disturb the state or a sector of population
-Without pluralism, tolerance & broadmindedness there is no democratic society
2. Copy-righted materials

,  ECtHR, Pirate Bay
3. Porn
4. Poster Campaign
 ECrHR, Movement Raelian Suisse
5. Primary role of press: Public watchdog
 ML & WW v Germany
[Para 89]
-Essential role played by press in democratic society: receiving & imparting information
6. Secondary role of press: Internet archives
 ML & WW v Germany
[Para 90]
-Preserving & making information available
-Educational & historical research: readily accessible to public & generally free



Right 2: Right to Privacy


Where:
1. Article 8: ECHR
2. Article 7: EU Charter

Scope:
1. Internal: Right to be left alone
2. External: Right to develop relationships with others
 ECrHR, S & Marper v UK [2008]
[Para 66]:
-Right to privacy applies when developing relationships with other human beings/outside world

Interference:
 S & Marper v UK [2008]
Facts:
-Applicants: Both arrested for criminal charges but acquitted
-Fingerprints, cellular samples & DNA profiles were retained
- Asked this information be destroyed but police refused
QOL:
-Interference with right to privacy under Article 8 ECHR?
Judgement:
[Para 71]: Back of mind…
-Rapid development in field of genetics & technology
- Future private-life aspects may be affected in new ways that cannot be anticipated today
[Para 77 & 86]
-Retention of fingerprints, cellular samples & DNA profiles=interference with private life


Right 3: Right to Effective Remedy


Where:
1. Article 13 ECHR
2. Article 47 EU Charter

Interference:
 Need national forum for human rights violations
-Quicker & cheaper


Right 4: Equality & principle of non-discrimination

,Where:
1. Article 14 ECHR
-Optional protocol 12 ECHR
2. Article 21 CFRs
 ECrHR, Schalk & Kopf v Austria
QOL:
Is denying same-sex marriage a violation of Article 14 Inc/w Article 8?
Judgement:
 Applicability of Art 14 Inc/w Art 8
 [Para 89]: Complementary
-Art.14 complements other provisions of the ECHR/protocols
- Facts must fall within ambit of other ECHR right
- Application autonomous to extent that it doesn’t presuppose breach of other provision
 [Para 95]: Application
-Facts fall within ambit of ‘private life’ & ‘family life’: Art 14 Inc/w Article 8 applies
 Interference with Art. 14 Inc/w Art 8?
 Argument 1: No Access to Marriage
 [Para 101]:
-Art. 12 ECHR doesn’t impose an obligation to grant same sex
couples access to marriage
-Article 14, a provision of more general scope, will not
 Argument 2: No Alternative Legal recognition?
-Now Registered Partnership Act in Austria
 [Para 105]: Should alternative legal recognition have been earlier?
 No EU Consensus
-No majority of states providing legal recognition of same-sex
couples
-wide margin of appreciation
 [Para 108]: Differences conferred by the status of marriage &
Registered Partnership
 Margin of appreciation
-Wide margin of appreciation regarding exact status
-No obligation to confer a status which corresponds to
marriage
 Conclusion:
-No interference with Article 14 inc/w Article 8

Additional Protocol 12 ECHR: Non-discrimination

 Ratified Protocol: non-discrimination is autonomous
 No ratification: use Article 14 Inc/w…



Part 3: Restricting Human Rights

Restrictions in ECHR
1. Prescribed by law
A. Legal basis in domestic law
B. ‘Quality Law’: Accessible and Foreseeable: Clear & detailed rules & minimum safeguards
2. Pursuing a legitimate aim
-Exhaustive
3. Necessary in a democratic society
 Margin of appreciation doctrine
-State discretion to decide what is a pressing social need & what is proportionate in specific country
[1] Pressing social need
-Reasons should be ‘relevant & sufficient’
[2] Proportionality to legitimate aim
-Balancing interests at stake
-‘Adequate safeguards’

,  ECrHR, S & Marper v UK [2008]
QOL: Violation of right to privacy under Art. 8 ECHR?
 Prescribed by law
1. Legal basis in domestic law
-Section 64 PACE
2. ‘Quality law’
-[Para 99]:
-State measures need to have clear detailed rules and minimum safeguards
-UK legislation broad BUT court doesn’t assess
 Legitimate aim
-Detection and prevention of crime
 Necessary in a democratic society
 Proportionality to legitimate aim
[1] Balancing competing interests
-Right to privacy v detection & prevention of crime
[2] [Para 119]: ‘Adequate safeguards’
-Blanket and indiscriminate nature of power of retention
-No adequate safeguards against abuse by public authorities
-Need sub-categories & distinctions:
[1] Seriousness of offence
[2] Age of the suspect
[3] Acquitted individuals
 Conclusion
-No balance struck between right to privacy and the detection & prevention of crime
-Violation of Art. 8 ECHR
 ECrHR, Movement Raelien Suisse v Switzerland [2012]
Facts:
-Applicant: National branch of the Raelian movement
-Public authorities prohibited their poster campaign based on website
-Reasons:
1. Human cloningHyperlink to Cloniad website
2. System of governmentGeniocracy: power to highest level of intellect
3. Sensual MeditationAdvocated paedophilia
QOL: Violation of Freedom of Expression under Art. 10 ECHR?
Judgement:
 Interference
-[Para 49]: Banning a poster campaign
 Prescribed by Law
-Yes
 Legitimate aim
-Morals
 Necessary in a democratic society
 Margin of appreciation
-State discretion to decide what is a pressing social need & what is proportionate
 Public Space
-No unlimited right to use public space for advertising that harms morals
 Type of speech
 Political speech= Narrow margin
 Commercial speech=Wide margin
 Website ≠ Political speech
 Website=Commercial speech
[1] Pressing social need
-Geniocracy, cloning & possible sexual abuse of minors
[2] Proportionate to legitimate aim
-Website & association not banned
-Can distribute leaflets
 Conclusion: Wide margin of appreciation & no violation of Art 10 ECHR

Concurring/Dissenting Opinions
 Focus: Controversial judgement, 9 concurring & 8 dissenting opinions

,Advertising in Public Space

1. Concurring Opinion: State regulates strictly
 No unlimited right to use public space for advertising
2. Dissenting Opinion: Neutral space to expose different views
 Neutrality from state: equal access for individuals/entities
 State may have to ban associations that seriously contravene democratic values
 However, a lawful association, with a lawful website should be able to promote its ideas
through posters

Hyperlink

 Court did not discuss hyperlink, but accept Cloniad as a ‘relevant and sufficient’ reason

Dissenting Opinion [Judge Albuquerque]
 Narrow margin of appreciation: Information disseminated via the internet
 No liability for ‘hyper-linker’ based on illegal content of the hyperlinked webpages except
1. They are in control of hyperlinked webpage or
2. Have endorsed the illegal content
 Linking is not endorsement, additional elements are necessary to prove the mens rea

Margin of appreciation



Dissenting Opinion [Judge Albuquerque]

≠ Commercial Speech?
1. Profit
-Non-profit association
2. Profit from Cloniad
-Association never gained profit from cloning services

Political Speech?

 Geniocracy
-Geniocracy has clear political connotation
-Narrows margin of appreciation



Restrictions in the EU Charter
 Focus: Rights in the Charter limitation clause under Art. 52 [1] and [3]


Article 10 [2] ECHR Article 52 [1] EU Charter
-Prescribed by law -Provided for by law and
-Not in the text but the ECHR but in its case law the -Respects the essence of those rights and freedoms
ECHR does respect the essence of those rights and
freedoms too

-Necessary in a democratic society -Subject to the principle of proportionality, limitations
may be made only if they are necessary
-Exhaustively prescribed legitimate aims -Genuinely meet objectives of general interest
recognised by the union or the need to protect the
rights and freedoms of othersNot exhaustive

Article 52 [3] EU Charter
1. Right in the EU charter that is in ECHR
2. Scope and limitations need to be the same
3. However, EU law can provide higher protection-
can never go lower

,Application of human
rights online

, Freedom of Expression Online

Internet Shutdowns

 ECOWAS, Amnesty International & Ors v The Togolese Republic [2020]
Facts:
-Total shutdown of the internet during mass protests in Togo
Judgement:
 Interference?
 QOL: Does access to internet fall within the scope of FoE?
 Derivative right [para 38]
-Access to the internet is not a human right
-Derivative right: platform that enhances the enjoyment of FoE
 Justification?
 QOL: Total internet shutdown justified?
 Togos argument:
-Legitimate aim: National security: protests could lead to civil war
 ECOWAS Judgement:
-National security is a legitimate aim for interference with FoE
-However: Togo shutdown the internet of the whole country without a legal basis
 Conclusion
=Violation of Art. 9 African Charter



Blocking & filtering websites


‘Victim Status’ admissibility: Blocking access to website

 ECrHR, Cengiz v Turkey [2015]
 [Para 49]: Victim status on internet
- No action popularis ECHR: need to be directly affected by state act/omission
-Criteria for applicant to be a victim of a measure blocking access:
[a] The way the person uses the website
+
[b] Potential impact of the measure on their right to receive & impart information


Chilling Effect [on press freedom]


1. Judge: balances effect of measure/judgement on others pursuit of FoE
2. ‘Chilled’ from pursuing because you fear punishment
3. Severe chilling effect may be a violation of Art 10 ECHR
 ECrHR, Times Newspaper Ltd
[Para 15]: ‘Chilling effect’
- Defendants argument: Chilling effect on willingness of newspapers to
provide Internet archives: limits their freedom of expression


Collateral Effect:

 Rule: Blocking order restricting freedom of expression given by a judge which has severe collateral
effects might be a violation of Art. 10 ECHR
1. Judge: balances effect of measure/judgement on rights of others to FoE
2. Collateral effects should be avoided
3. Severe collateral effects may be a violation of FoE
 ECrHR, Ahmet Yildirim v Turkey
[para 64]: Judicial review
-Judge: weigh up collateral effects before taking a blocking measure

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