{"id":72141,"date":"2020-05-28T21:13:00","date_gmt":"2020-05-28T19:13:00","guid":{"rendered":"https:\/\/www.lexxion.eu\/dpi\/data-protection-insider-issue-24\/"},"modified":"2024-05-12T00:20:04","modified_gmt":"2024-05-11T22:20:04","slug":"data-protection-insider-issue-24","status":"publish","type":"dpi","link":"https:\/\/www.lexxion.eu\/en\/dpi\/data-protection-insider-issue-24\/","title":{"rendered":"Data Protection Insider, Issue 24"},"content":{"rendered":"
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–\u00a0<\/strong>ECtHR Rules on the Balance between Privacy and Freedom of Expression –<\/strong><\/span><\/a><\/p>\n

On 14th<\/sup> May the ECtHR issued its ruling in Rodina v Latvia<\/em> on an Article 8 ECHR complaint. The case concerned the media attention given to a familial conflict. The applicant\u2019s mother and sister made claims that the applicant sold her mother\u2019s apartment after the applicant\u2019s mother was admitted to a psychiatric clinic. Reportedly, following the release from the clinic, the applicant\u2019s mother did not have a place to live and the applicant did not wish to take care of her. A newspaper published an article about the situation which contained enough information to identify the applicant \u2013 including a photograph, published without consent or forewarning. The applicant complained that the newspaper article, subsequent coverage on television as well as domestic courts\u2019 failure to balance her right to privacy with her relatives\u2019 and the media\u2019s rights to freedom of expression constituted breaches of her right to privacy. The ECtHR ruled that the domestic courts had failed to strike a balance between the right to privacy and the right to freedom of expression and that there was a violation of Article 8 ECHR.<\/a> The Court argued that a violation was found because the applicant could not be considered to be a public figure, the story did not contribute to a debate of public interest, the applicant had clearly expressed her disagreement with the publication and the journalists working on the story did not seem to have followed the necessary professional standards in reporting \u2013 for example, they focused on presenting only one side of the conflict. The Court further argued that these factors were not adequately considered by the domestic courts. This case demonstrates again the fine balance between the rights to privacy and freedom of expression. The case is not particularly noteworthy in terms of content or argumentation. The case is noteworthy, however, for the fact it needed to be heard in front of the ECtHR at all. Given the comprehensive ECtHR jurisprudence on the issue, it remains surprising that domestic courts regularly fail to perform proper balancing exercises between the two rights.<\/span><\/p>\n

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–\u00a0<\/strong><\/span>Constitutional Protection of Telecommunications Privacy for Intelligence Abroad –<\/strong><\/span><\/a><\/p>\n

On 19th<\/sup> May the German Constitutional Court issued a ruling on the constitutional compatibility of three main aspects of the German Federal Intelligence Service (BND) Act. The challenged aspects concern the BND\u2019s powers to collect and analyse the telecommunications data of non-German citizens living abroad, to transmit it to other German and foreign authorities and to cooperate with foreign intelligence services. In its ruling, the Court set out the following three significant considerations. First, the Court established that the BND is bound by the German Constitution even when its actions concern non-Germans living abroad.<\/a> Second, the Court ruled that, whereas surveillance of telecommunications data abroad is not, per se, unconstitutional, the current provisions of the BND Act breach the fundamental rights to privacy of telecommunications and of freedom of the press \u2013 Articles 10(1) and 5(1) of the Constitution. The Court put forward five reasons supporting this position: i) by not treating the contested powers as subject to the Constitution, the German government did not comply with the procedural requirement to specify affected fundamental rights in a law under Article 10(1) of the Constitution; ii) with regards to the collection and analysis of telecommunications data, the contested Act does not satisfy relevant procedural requirements \u2013 such as having a clearly stated purpose, breaking down surveillance measures into clear-cut categories to enable oversight, respecting proportionate data storage principles etc; iii) the law cannot be regarded as proportionate, because the Constitution does not allow \u201cglobal and general\u201d surveillance even for the purpose of foreign intelligence; iv) concerning the transfer of data to other German authorities and to other foreign intelligence services, the Court ruled that these were not sufficiently restricted by law to be proportionate \u2013 for example, the law did not set out requirements obliging recipient authorities to process data in accordance with the rule of law; and v) concerning the cooperation with other foreign intelligence agencies, the Court set out the requirement that such cooperation should not permit German authorities to circumvent the requirements of the Constitution. Finally, the Court generally set out detailed requirements for the independent oversight of the actions of foreign surveillance. Despite the constitutional incompatibility of the contested Act, the Court granted the government a grace period until 31st<\/sup> December 2021 to amend the Act. The ruling is particularly welcome for the fact the Court set out clear (constitutional) standards for the operation of intelligence services. Whilst intelligence activities fall outside the scope of EU law, it is notable that the standards adopted by the Court resemble those set out by the CJEU in telecommunication surveillance cases for law enforcement purposes \u2013 for example Digital Rights Ireland<\/em>.<\/span><\/p>\n

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\u00a0–\u00a0<\/strong><\/span>EDPB Holds 28th<\/sup> Plenary Session –<\/strong><\/span><\/a><\/p>\n

On the 19th<\/sup> May, the EDPB held its 28th<\/sup> Plenary Session. In the session, the EDPB adopted one document and made one significant decision<\/a>: <\/span><\/p>\n