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Reply to Recommendation | Doc. 14432 | 19 October 2017
Technological convergence, artificial intelligence and human rights
1. The Committee of Ministers has examined
closely Recommendation
2102 (2017) of the Parliamentary Assembly on “Technological
convergence, artificial intelligence and human rights”. The Committee
of Ministers considers that technological convergence and artificial
intelligence have brought unprecedented benefits to our societies
and are to be seized. It recalls the contribution of progress in
sciences and technologies in the biological and medical field to
the improvement of human health and quality of life. However, the
increasing possibilities they provide to influence and control human
life and the implications for human beings of a misuse of such knowledge
and technologies must also be stressed. It is therefore crucial
that care is taken in this field to fully respect the fundamental
rights and freedoms guaranteed to any individual. The Committee
of Ministers therefore concurs with the general thrust of the recommendation
and welcomes the vigilance and awareness called for in this area.
2. In the context of the Council of Europe, several fields of
activity are of particular relevance to this recommendation. The
Committee on Bioethics (DH-BIO) carries out extensive work with
a view to protecting human dignity and individual rights in the
field of biomedicine, in particular with respect to new scientific
and technological advances. In this respect, and subject to the
decision of the Committee of Ministers on its terms of reference
for the next biennium, the DH-BIO intends to develop a strategic
action plan, as referred to in paragraph 5 of the Assembly’s recommendation.
3. This strategic action plan would be based on the outcome of
the Conference to be organised on the occasion of the 20th anniversary
of the Convention on Human Rights and Biomedicine (Oviedo Convention)
in October 2017, under the auspices of the Czech Chairmanship of
the Committee of Ministers. The objectives of this strategic action
plan will be to ensure, in particular, that: (1) human rights of
particularly vulnerable groups are better protected; (2) human rights
challenges raised by new technologies, in particular in the fields of
genetics and genomics, are addressed and (3) appropriate education
and training of professionals concerned are facilitated.
4. The conference will address human rights challenges raised
by developments in the field of genetics and genomics, technologies
applied to the brain and big data in the health field. It will be
informed in particular by two studies on challenges for children’s
rights raised by developments of biology and medicine as well as
on the outcome of the high level seminar on international case law
in bioethics organised at the European Court of Human Rights, in
December 2016, under the auspices of the Cypriot Chairmanship of
the Committee of Ministers. The Committee of Ministers considers
that this event will provide an opportunity to debate the difficulties
faced by the legislator, underlined by the Parliamentary Assembly,
in view of providing a contribution, in terms of human rights, to
the progress of science and technologies.
5. The Committee of Ministers agrees with the Assembly that there
is a strong need for public debate in this area, which is also advocated
in Article 28 of the Oviedo Convention. 
In
this respect, and as part of its initiatives to address human rights
challenges raised by emerging technologies, the DH-BIO will develop guidance
on how to promote public discussion and consultation on fundamental
questions raised by the developments of biology and medicine.
In
this respect, and as part of its initiatives to address human rights
challenges raised by emerging technologies, the DH-BIO will develop guidance
on how to promote public discussion and consultation on fundamental
questions raised by the developments of biology and medicine.6. The Committee of Ministers has taken note of the Assembly’s
invitation (paragraph 7.1) to finalise without further delay the
modernisation of the Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108,
hereafter ‘Convention 108’). In this respect, it recalls that it
transmitted the draft amending Protocol to the Assembly for an opinion
on 5 July 2017, although negotiations are still ongoing within the
Committee of Ministers. The Committee is thus well aware of the urgency.
The modernisation proposals have been carefully drafted with a view
to responding to emerging challenges in the field of data protection
and would also assist lawmakers in adapting to the speed of scientific and
technologic evolution, as mentioned in the recommendation. Further
details on the proposed amendments aimed at modernising the Convention,
appear in the Appendix to this reply.
7. In response to paragraph 7.2 of the recommendation, the Committee
of Ministers would recall that the new Council of Europe Disability
Strategy in Nicosia, Cyprus (27-28 March 2017) aims at achieving
equality, dignity and equal opportunities for persons with disabilities.
This requires ensuring independence, freedom of choice, full and
active participation in all areas of life and society. The Committee
of Ministers would underline that further work in this field, especially
on accessibility and universal design, could aim at providing guidance on
how the persons with disabilities can have access to and fully benefit
from developments in the age of use of care robots and assistive
technologies, without discrimination and equally with others.
8. In relation to paragraph 8, the Committee of Ministers notes
the reference to the “social and ethical consequences”
of technological convergence. The Big Data guidelines adopted by the Consultative Committee
of the Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data (T-PD) are a concrete illustration
of the innovative and adaptive response to those challenges. The Guidelines
precisely underline the need to guarantee an “ethical
and socially aware use of data.”
adopted by the Consultative Committee
of the Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data (T-PD) are a concrete illustration
of the innovative and adaptive response to those challenges. The Guidelines
precisely underline the need to guarantee an “ethical
and socially aware use of data.”9. Regarding paragraph 9, calling to strengthen transparency
and operators’ accountability, the Committee of Ministers would
signal that this is another key feature of the modernisation of
Convention 108, with, inter alia, a
new article on the “transparency of the processing”, which details
the obligations of the controller, aimed at ensuring a fair and
transparent processing of the personal data. The Committee of Ministers
would also recall its Recommendation CM/Rec(2010)13 on the protection
of individuals with regard to automatic processing of personal data
in the context of profiling as well as its Recommendation CM/Rec(2016)3
on human rights and business which deals with the corporate social
responsibility of private actors vis-à-vis the exercise of fundamental
rights and freedoms. The Committee of Ministers would furthermore
inform the Assembly that the T-PD will focus more specifically on
the data protection implications of artificial intelligence in its
work for the biennium 2018-2019.
10. The Committee of Ministers has noted the various proposals
aimed at drawing up guidelines in a wide variety of areas, including
private and family life, profiling, location tracking or the assistance
provided to elderly people. Some of these will be addressed by the
activities mentioned above. With regard to the latter question, it
would invite its Steering Committee for Human Rights to take into
consideration the concerns expressed by the Assembly when addressing,
in 2018, the Recommendation CM(2014)2 on
the promotion of human rights of older persons, adopted by the Committee
of Ministers in 2014.
11. Finally, the Committee of Ministers agrees with the Assembly
on the need for continued close co-operation with other international
organisations and stakeholders with a view to exchanging good practices
and ensuring as much as possible consistency of the legal framework
at the international level.
Appendix
(open)Comments by the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD)
1. The Ministers’ Deputies agreed at their 1286th meeting
(10-11 May 2017) to communicate Recommendation 2102 (2017) of the
Parliamentary Assembly of the Council of Europe on “Technological convergence,
artificial intelligence and human rights” to the Consultative Committee
of the Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data, for information and possible comments.
2. The Bureau of the Consultative Committee welcomes the adoption
of Recommendation 2102
(2017) and emphasises the importance of addressing challenges
to human rights which emerge in the context of technological convergence
and artificial intelligence.
3. The unprecedented benefits for our societies of technological
convergence and artificial intelligence are to be seized, in full
respect of the fundamental rights and freedoms guaranteed to any
individual. The vigilance and awareness called for by the Parliamentary
Assembly in its recommendation are welcome and should pave the way
to further in-depth work on those challenges, in particular with
regard to the right to data protection.
4. The Bureau of the Consultative Committee first and foremost
commends the call of the Parliamentary Assembly (paragraph 7.1)
to finalise without further delay the modernisation of the Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108, hereafter ‘Convention 108’) and regrets
that six years after the inception of this crucial work, the modernisation
has not yet been achieved.
5. The difficulty for lawmakers to adapt to the speed of scientific
and technologic evolution, underlined in the recommendation, is
real. The modernisation proposals have been carefully drafted with
a view to standing the test of time and aim at responding to emerging
challenges in the field of data protection.
6. The Bureau of the Consultative Committee fully shares the
opinion of the Parliamentary Assembly on the importance of safeguarding
human dignity in the 21st century, and
what it implies. Human dignity is the basic principle underlying
human rights law and securing it in the digital age was at the core
of the modernisation work of Convention 108. The proposed Preamble
stresses that “[…] it is necessary to secure the human dignity and
protection of the human rights and fundamental freedoms of every
individual and, given the diversification, intensification and globalisation
of data processing and personal data flows, personal autonomy based
on a person’s right to control of his or her personal data and the
processing of such data”.
7. In relation to paragraph 8, the Bureau of the Consultative
Committee notes the important reference to the “social and ethical
consequences” of technological convergence. Hyper connectivity and
the volume of personal data that it entails are of concern and data
protection principles will have to continue to evolve and adapt
to new challenges. The Big Data guidelines adopted by the Consultative Committee
are a concrete illustration of the innovative and adaptive response
to those challenges. The Guidelines precisely underline the need
to guarantee an “ethical and socially aware use of data”. This general
guidance will have to be complemented by sector-tailored provisions
adapted to specific contexts and this is one of the objectives of
the Committee in the years to come.
adopted by the Consultative Committee
are a concrete illustration of the innovative and adaptive response
to those challenges. The Guidelines precisely underline the need
to guarantee an “ethical and socially aware use of data”. This general
guidance will have to be complemented by sector-tailored provisions
adapted to specific contexts and this is one of the objectives of
the Committee in the years to come.8. The Bureau of the Consultative Committee also refers to the
introduction of privacy by design, privacy by default, privacy-impact
assessments and new security obligations in the modernisation proposals
of Convention 108 as another important response to the challenges
underlined by the Parliamentary Assembly in its recommendation.
9. Regarding the specific call of the Parliamentary Assembly
to address the “social and ethical consequences related to the field
of genetics and genomics”, the Bureau of the Consultative Committee underlines
its excellent and long-standing co-operation with the Committee
on Bioethics, and the willingness of both committees to continue
working together on common challenges in those particular fields.
10. Regarding paragraph 9, the Bureau of the Consultative Committee
fully supports the call to strengthen transparency and operators’
accountability. This is another key feature of the modernisation
of Convention 108, with a new article on the “transparency of the
processing”, which details the obligations of the controller, aimed at
ensuring a fair and transparent processing of the personal data.
Furthermore, the proposed article on “additional obligations” prescribes
that all appropriate measures to comply with the obligations of
the Convention have to be taken, and highlights the necessity of
being able to demonstrate such compliance. Two other particular
aspects of the modernisation proposals bring a complementary element
of response to the call of the Parliamentary Assembly, and are of
particular relevance in a context of technological convergence and artificial
intelligence. The first one is the right of the data subject not
to be subject to a decision significantly affecting him or her based
solely on an automated processing of data without having his or
her views taken into consideration. The second novelty is the right
for the data subject to obtain on request knowledge of the reasoning
underlying data processing where the results of such processing
are applied to him or her. The Bureau of the Consultative Committee
also recalls the recommendation adopted by the Committee of Ministers on
the protection of individuals with regard to automatic processing
of personal data in the context of profiling.
11. The protection of individuals with regard to the processing
of personal data will require that the comprehensive protective
system of the modernised Convention be complied with, starting with
the legal basis for the processing, and the importance of providing
to data subjects, where consent is the legal basis, the necessary
conditions to express a consent that is free, specific, informed
and unambiguous.
12. The Bureau of the Consultative Committee thus once again underlines
the need for a rapid adoption of the modernised Data Protection
Convention, which in its proposals contains several responses to
some of the challenges paused by technological convergence and artificial
intelligence. The Committee of Convention 108 will continue to tackle
such challenges, and proposes in its 2018-2019 work plan to focus
more specifically on the data protection implications of artificial
intelligence.
13. Finally, the Bureau of the Consultative Committee welcomes
the call for close co-operation with other institutions, organisations
and stakeholders and commits to continue its active engagement with
other key actors in the promotion and development of data protection
standards to address new challenges.