privacidade e proteção aos direitos da personalidade
TRANSCRIPT
Sophie Kwasny
16 June 2011
IV CongressoCrimes electrônicos - Formes de Proteção
São Paulo – 23 de Agosto de 2012
Privacidade e proteção aos direitos da personalidade Conselho da Europa - Convenção 108
Sophie Kwasny
Data Protection Unit
Council of Europe
Sophie Kwasny
16 June 2011
Habeas data / data protection / privacy
Habeas data: ‘that you have the data’ : right of access, rectification, update, erasure
data protection and protection of invididuals: datenschutz or ‘protection of individuals’ with regard to the processing of personal data ?
Privacy: Article 12 UDHR 1948, Article 17 ICCPR 1966 .. Article 8 ECHR ‘private life’ (name, image, correspondence, physycal integrity, etc)
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Challenges
cyberspace: an interconnected world with 2.3 billion users worldwide
ubiquity of data and profiling global online transactions - $10 trillion
annually / $24 trillion by 2020 data protection as a human right:
ECtHR, EUCJ, constitutional courts
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Protection and Security
Protection of the individuals and data security integrity and confidentiality: ‘Appropriate
security measures shall be taken against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination (Article 7 Convention 108)
increasing role of technologies: PETs : technical and organizational concepts also focusing on security
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Seen from Europe…
‘direitos da personalidade’ : human personality serving both as the foundation and aim of human rights
Early 60ies : rapid progress in the field of electronic data processing
70ies : first pieces of legislation and even fundamental right in some Constitutions
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Convention 108’s key facts
28 January 1981 – 31st anniversary Drafted with the participation of non-
European countries (Australia, Canada, Japan and the USA)
Soon 44 parties Uruguay invited to accede, Marocco
asked to be invited, next ?
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Its potential
universal basic principles legally binding force simple and technologically-neutral cross-cutting scope of application
covering public and private sector frame for multilateral cooperation
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Snapshot I
Object and purpose: to secure in their territory for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to the processing of personal data (data protection).
Definitions: personal data, data subjects, processing, etc.
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Snapshot II
Scope: horizontal - public and private sector.
Duties of the parties: take necessary measures in domestic law to give effect to the basic principles for data protection set out in the Convention.
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Snapshot III
Basic principles: -fair and lawful collection and processing,-storage for specified legitimate purposes
and no longer than is necessary-compatible use-data: adequate, relevant and not
excessive (proportionality), accurate, kept up to date, not name-linked for longer than needed secure
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Snapshot IV
Basic principles: -information, right of access and
rectification, right to a remedy.-outlawed : processing of "sensitive" data
on a person's race, politics, health, religion, sexual life, criminal record, etc., in the absence of proper legal safeguards.
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Snapshot V
Restrictions on the rights laid down in the Convention are only possible when overriding interests (e.g. State security, defence, etc.) are at stake
Flow of data: free between Parties and restrictions on transborder flows of data to States where legal regulation does not provide adequate protection (additional protocol - 2001)
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Snapshot V
Mutual assistance
Consultative committee
Supervisory authorities
Convention 108 Sophie Kwasny Council of Europe
Sophie Kwasny
16 June 2011
Modernisation – trends I
promote as a universal standard, with an open and multistakeholder approach
preserve general, simple, flexible and pragmatic character- while addressing new ICT challenges
Convention 108 Sophie KwasnyCouncil of Europe
Sophie Kwasny
16 June 2011
Modernisation – trends II
ensure coherence with other relevant frameworks (EU, OECD, APEC)
strengthen follow-up mechanism
Convention 108 Sophie KwasnyCouncil of Europe
Sophie Kwasny
16 June 2011
Complements and interconnection
Recommendations Declaration on Internet
governance principles Cybercrime convention
Sophie Kwasny
16 June 2011
Convention 108 Sophie Kwasny Council of Europe
Conclusion
Convention 108 – – robust, while at the same time
flexible, resilient, enduring, evergreen