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Reply to Recommendation | Doc. 13911 | 14 October 2015
Mass surveillance
1. The Committee of
Ministers has carefully studied Parliamentary Assembly Recommendation
2067 (2015) on “Mass surveillance”. It has transmitted it to the
Steering Committee on Media and Information Society (CDMSI), the
Consultative Committee of the Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108)
(T-PD) and the Steering Committee for Human Rights (CDDH), for information
and possible comments.
2. The Assembly’s recommendation raises a number of issues that
are of serious concern to member States and their citizens. The
Committee of Ministers recalls its Declaration on Risks to Fundamental
Rights stemming from Digital Tracking and other Surveillance Technologies
of 2013, in which it stated in particular that mass surveillance
“capabilities and practices can have a chilling effect on citizen
participation in social, cultural and political life and, in the
longer term, could have damaging effects on democracy. They can
also undermine the confidentiality rights associated to certain
professions, such as the protection of journalists’ sources, and even
threaten the safety of the persons concerned”.
3. The Committee of Ministers also recalls that the Political
Declaration adopted at the Council of Europe Conference of Ministers
responsible for media and information society on freedom of expression
and democracy in the digital age (Belgrade, 7-8 November 2013) stated, inter alia, that “growing technological capabilities
for electronic mass surveillance and the resulting concerns, […]
emphasise that there must be adequate and effective guarantees against
abuse which may undermine or even destroy democracy.” In the context
of the follow-up to the conference and in particular Resolution
No. 1 on Internet freedom adopted by the Ministers, the Committee
of Ministers, in December 2013, instructed the CDMSI to examine
closely, in the light of the requirements of the European Convention
on Human Rights, the question of gathering and processing of electronic
communications data on individuals by security agencies, with a
view, as appropriate, to making proposals for further action. The
CDMSI is thus elaborating a draft recommendation on Internet freedom,
which also addresses issues of mass surveillance, which is expected
to be finalised by the end of 2015.
4. The Committee of Ministers underlines that any measures taken
in the interest of national security should rigorously meet the
requirements set out in the European Convention on Human Rights,
in particular regarding the right to private and family life (Article
8), freedom of expression and access to information (Article 10)
and freedom of assembly and association (Article 11). It further
emphasises that member States have both negative obligations, that
is to refrain from interference with fundamental rights, and positive
obligations, that is to actively protect these rights. This includes
the protection of individuals from arbitrary restrictions by non-State
actors such as online intermediaries. The Committee notes with interest
that cases are pending before the European Court of Human Rights
on mass surveillance with regard to Article 8 of the European Convention on
Human Rights.
5. The Committee of Ministers would also make reference to the
Council of Europe Guide to Human Rights for Internet Users, and
its implementation through capacity building and co-operation assistance
activities. The Guide states that Internet users must not be subjected
to general surveillance or interception measures but may only be
subject to legitimate interference which is prescribed by law, such
as a criminal investigation. In particular, users should have access
to clear and precise information about the relevant law or policy
and rights in this regard.
6. In this context, the Committee of Ministers highlights in
particular the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data (Convention No.
108). It recalls that the fundamental right to respect for private
life is protected under Article 8 of the European Convention on
Human Rights, as well as under Convention No. 108 and its Additional
Protocol, which is, to date, the only legally binding international
instrument protecting individuals with regard to the processing
of their personal data, thereby contributing to respect for their
human rights and fundamental freedoms, and in particular their right
to privacy and the protection of their personal data. The Committee
of Ministers recalls that Convention No. 108 and its Additional
Protocol provide for the establishment of a national independent
supervisory authority with powers of investigation and intervention,
as well as the power to engage in legal proceedings or bring to
the attention of the competent judicial authorities violations of
provisions of the domestic law in relation to the protection of
personal data. According to the Convention, Parties further undertake
to establish appropriate sanctions and remedies for violations of
the provisions of domestic law giving effect to the basic principles
of data protection. The work to modernise the Convention, which
is at its final stage, should strengthen the effectiveness of this
tool. The present draft text of the revised Convention contains
a specific obligation for the data controller to notify without
delay, at least to the competent supervisory authority, the data
breaches which may seriously interfere with the rights and fundamental
freedoms of data subjects (Article 7, paragraph 2). The Committee
of Ministers intends to step up its efforts for the promotion of
Convention No. 108.
7. In the light of what has been stated above, the Committee
of Ministers sees no reason at present to launch an initiative for
the negotiation of an “intelligence codex” as requested by the Assembly (paragraph 2.3). 
8. Finally, the Committee will consider strengthening its co-operation
with the competent bodies of the European Union on these issues
and notes, in this respect, with interest the work under way at
the EU Fundamental Rights Agency on the protection of fundamental
rights in the context of large-scale surveillance (paragraph 2.4
of the recommendation).