Draft Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and its explanatory report
- Parliamentary Assembly
- Text adopted by the Standing Committee,
acting on behalf of the Assembly, on 24 November 2017 (see Doc. 14437, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Raphaël Comte).
The Parliamentary Assembly refers
to its Resolution 1732
on reinforcing the effectiveness of Council
of Europe treaty law in which it underlined the Council of Europe’s essential
role in drawing up human rights standards and its major contribution
to the development of international law through its treaties. The
Convention for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108, hereafter “Convention 108”) is one
example of a Council of Europe convention focusing on pressing issues
and is undoubtedly one of the core Council of Europe treaties.
2 The Assembly emphasises that Convention 108 was the first,
and is still the only, binding international legal instrument in
the field of data protection. There is no other equivalent instrument
in the world, and one of the reasons why it is unique is that it
is open to all the countries in the world.
3 The Assembly is convinced of the urgent need to modernise
Convention 108 in order to address developments in the constantly
evolving field of information and communication technologies and
so that the European law developed by the Council of Europe treaties
continues to include groundbreaking provisions that supplement existing
international law. The Assembly therefore welcomes the preparation
of a draft protocol amending Convention 108 and its explanatory
report, having as principal aims to provide a response to the challenges
arising from developments in new information and communication technologies
and to strengthen the implementation in practice of Convention 108.
Referring to its Recommendation
on technological convergence, artificial
intelligence and human rights, in which it already called on the
Committee of Ministers to finalise without further delay the modernisation
of Convention 108, the Assembly observes that, more than six years
after the beginning of the revision process, difficulties in reaching
a consensus on certain provisions in the draft amending protocol persist.
These disagreements, in particular on the arrangements for the entry
into force of the amending protocol, jeopardise the whole exercise
and risk the Council of Europe losing its role as the lead player
in the field of personal data protection.
5 Based on the optimistic assumption that an agreement will
be found by the end of 2017, the Assembly recommends that the Committee
of Ministers open the amending protocol for signature as quickly
as possible and urges member States to ratify it without delay.
If the text has to include a conventional ratification clause, this
should contain a procedure to assess progress of the ratification
process and provide for an alternative solution – namely the adoption
of a new convention – if there is no immediate likelihood of the
protocol’s entry into force on the date of the assessment.
6 Accordingly, the Assembly believes that if disagreements continue
beyond the end of 2017, it will be time for the Committee of Ministers
to accept that it is impossible to amend Convention 108. In such
a situation, the Assembly recommends that the Committee of Ministers
initiate without delay negotiations for the prompt adoption of a
new convention based on the draft amending protocol already approved
by the Ad hoc Committee on Data Protection (CAHDATA).