Tải bản đầy đủ - 0 (trang)
4 Ambitions of the EU in Promoting Democracy: Democracy Requires a Free Internet, but Not an Unprotected Internet

4 Ambitions of the EU in Promoting Democracy: Democracy Requires a Free Internet, but Not an Unprotected Internet

Tải bản đầy đủ - 0trang

2.4  Ambitions of the EU in Promoting Democracy: Democracy Requires a Free…



25



for electronic communications, the Commission provides for a right to participate

on the internet, whereby “End-users shall be free to access and distribute information and content, run applications and use services of their choice via their internet

access service.”34

A free internet could also mean that whereas individuals are to a large extent

dependent on big internet players,35 they may require those players themselves to

act in a transparent way as a prerequisite for a free and democratic society.

The link between the internet and democracy is often made, by depicting the

internet as a space where the free flow of information is promoted, that protects

human rights and that fosters innovation,36 in short an environment where democratic values are fully respected. The European Commission even states that the

internet facilitates democratic progress worldwide.37

One of the justifications for restricting government intervention on the internet is

the fact that states may attempt to curb the global connectivity of their citizens by

censorship and other restrictions of free speech.38



2.4.2  A Free Internet Does Not Mean an Unprotected Internet

Democracy must flourish on the internet. This essentially means that governments

may set conditions where necessary, but must in principle abstain from intervention.

This is one of the reasons why the Commission has embraced the model of multi-­

stakeholder governance structures for the internet, with limited government participation. In certain situations, however, governments should also actively ensure that

democratic rights are respected, and this requires active government intervention.

Privacy and data protection must be guaranteed: Article 16 TFEU provides the

European Union with the mandate to do so.



34



 Proposal for a Regulation of the European Parliament and of the Council laying down measures

concerning the European single market for electronic communications and to achieve a Connected

Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations

(EC) No 1211/2009 and (EU) No 531/2012, COM (2013), 627 final.

35

 As will be explained in Chap. 3.

36

 Taken from Freedom Online Coalition (FOC), “Hague declaration”. See: http://www.minbuza.nl/

binaries/content/assets/minbuza/en/the_ministry/declaration-freedom-online-feb-2013.pdf, at 3.

37

 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions Internet Policy and Governance

Europe’s role in shaping the future of Internet Governance, COM/2014/072 final, at 2.

38

 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions, Internet Policy and

Governance – Europe’s role in shaping the future of Internet Governance, COM/2014/072 final, at

3. Examples include China and Russia. See, in Dutch: Adviesraad Internationale Vraagstukken

(AIV), Advies 92, “Het Internet: een wereldwijde vrije ruimte met begrensde staatsmacht”,

November 2014, at 62–63.



26



2  Privacy and Data Protection as Values of the EU That Matter, Also…



Moreover, the respect of democracy on the internet also requires democratic

governments to protect democratic societies against threats, such as those caused by

serious crime and terrorism. This may require restrictions to or limitations on the

exercising of fundamental rights, insofar as such restrictions or limitations are “necessary in a democratic society”,39 as illustrated by the abundant case law, in particular of the European Court of Human Rights.40 Proportionality is the yardstick for

these restrictions or limitations. Within the EU context, the case law on restrictive

measures for the fight against terrorism41 – such as the freezing of certain individuals’ assets, thus restricting their right to property – is an example of how it can be

necessary to restrict a fundamental right in a democratic society, notwithstanding

the fact that the measures taken must obviously be proportional. More generally, the

fight against terrorism – in particular in the period following 9/11, but equally in

reaction on the more recent tragic events in France and Belgium in 2015 and 2016 –

shows that, in a democracy, human rights may be fragile in times of threat.42



2.4.3  Democracy and the EU

Respect for democracy on the internet also requires governments and governmental

bodies themselves to have sufficient legitimacy. Primary EU law contains a procedural principle that is designed to contribute to liberty and democracy: as part of the

democratic principles, the EU institutions have to maintain an open, transparent and

regular dialogue with representative associations and civil society.43

In this book, the democratic legitimacy of the European Union itself as an actor

will be prominently addressed.44 More specifically, the need for democratic legitimacy or accountability has to be reconciled with the independence of supervisory

agencies under Article 16(2) TFEU and Article 8(3) Charter.45 Furthermore, since

governments are increasingly dependent on private parties,46 this trend needs to be

examined from the perspective of democratic legitimacy.



39



 This wording is used in various articles of the ECHR.

 See: Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human

Rights, (Oxford University Press, 2013).

41

 There is a great deal of case law on this. The well-known example, discussed in other parts of this

book, is Joined Cases C-402/05P and 415/05P, Kadi and Al Barakaat, EU:C:2008:461.

42

 On this, see: Micheline R. Ishay, The History of Human Rights From Ancient Times to the

Globalization Era (University of California Press, 2008), at 12, referring to the US Patriot Act.

43

 Article 11(2) TEU.

44

 See Chap. 4 of this book.

45

 This is the subject of Chap. 7.

46

 See Chap. 3.

40



2.5  Ambitions of the EU in Promoting the Rule of Law: How to Ensure Effective…



27



2.5  A

 mbitions of the EU in Promoting the Rule of Law: How

to Ensure Effective Privacy and Data Protection

on the Internet Under the Rule of Law

This section discusses the ambitions of the European Union in promoting the rule of

law in relation to privacy and data protection on the internet. This relation is problematic, as illustrated by the Snowden revelations, big data and other developments

in the information society.47 It is not evident that the rule of law is always respected.

Under the rule of law, there must be control of power, while people are also entitled

to effective legal protection. There is a close link between the rule of law and elements of the right to data protection.



2.5.1  Understanding the Concept of the Rule of Law

Although there is no generally accepted definition of the rule of law (or État de droit

in French, or Rechtsstaat in German and Dutch) that derives from the various

national traditions,48 there is wide consensus that this notion plays an essential role

in our societies. As the Commission states, “The rule of law is the backbone of any

modern constitutional democracy”.49 The European Court of Human Rights has also

regularly stated that a democratic society is based on or governed by the rule of

law.50 In Les Verts v European Parliament (1986), the Court of Justice referred for

the first time to what was then the European Economic Community as a “Community

based on the rule of law”,51 which meant that it provides for a complete system of

judicial review.

One can consider the rule of law either as a more formal or as a more substantive

notion. In the more formal – narrower – sense, the notion of the rule of law entails

strong public institutions that should respect procedural requirements, while a more

substantive – broader – understanding also includes substantive justice.52 These two

understandings are regularly referred to as ‘thin’ theories, emphasising the formal/

procedural aspects of the rule of law, and as ‘thick’ theories that also incorporate

47



 All mentioned in Chap. 3 of this book.

 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, at 1.

49

 Communication from the Commission to the European Parliament and the Council, A new EU

Framework to strengthen the Rule of Law, as corrected in COM(2014) 158 final/2, at 2.

50

 E.g., Hirst v United Kingdom, Application No 74025/01, at 58: “An effective and meaningful

democracy governed by the rule of law”.

51

 Case 294/83, Les Verts v European Parliament, EU:C:1986:166, at 23. See also: Joined Cases

C-402/05P and 415/05P, Kadi and Al Barakaat, EU:C:2008:461, at 281.

52

 Armin von Bogdandy, Michael Ioannidis, “Systemic deficiency in the rule of law: What it is,

what has been done, what can be done”, CMLR 51: 59–96, at 62 (with references to a vast

literature).

48



28



2  Privacy and Data Protection as Values of the EU That Matter, Also…



substantive notions of justice.53 In the EU context, a ‘thicker’ approach is usually

taken, thus reflecting a broad and substantive understanding of the rule of law,54

although it is also argued that Article 2 TEU reflects a ‘thin understanding’ by distinguishing the rule of law from other core values of the European Union, such as

democracy and fundamental rights.55

Other commentators underline two core elements, namely the establishment of

order in a society through law, on the one hand, and the control of power, on the

other hand. These are different aims, which are not necessarily convergent.56

Individuals may require the government to act in order to ensure that private actors

obey the law, and more generally that the state addresses threats, whereas under the

rule of law they are also protected against acts of governments themselves. If applied

to privacy and data protection: governments set the rules in order to ensure that the

private sector respects these rights, whereas at the same time individuals need protection against governments.

In addition, the separation of powers and the independence of the judiciary are

considered elements of the rule of law.57 In Assanidze v Georgia58 the European

Court of Human Rights set a standard precluding the legislature from interfering

with the administration of justice to influence the judicial determination of a dispute, from calling a ruling into question and from preventing its execution. This

case law may have relevance in relation to the independence of data protection

authorities.59

These different interpretations are mentioned in order to illustrate that the rule of

law is a core value for the European Union, as well as for the Member States, but

that there is no consensus as to what this value precisely comprises. In the context

of this book, we follow what Von Bogdandy and Ioannidis see as the essence of the

rule of law. According to them, the rule of law “requires as a minimum that the law

actually rules”.60 Public authorities must act in accordance with the law and ensure

that private actors observe the law.

53



 L. Pech, “Rule of law as a guiding principle of the European Union’s external action”, Centre for

the Law of EU External Relations (CLEER), T.M.C. Asser Institute, mainly footnote 8 of Chap. 1;

Brian Tamanaha, A Concise Guide to the Rule of Law, (St. John’s University School of Law,

2007).

54

 L. Pech, “Rule of law as a guiding principle of the European Union’s external action”, Centre for

the Law of EU External Relations (CLEER), T.M.C. Asser Institute, at 8. This also follows from

the case law mentioned in this paragraph.

55

 Armin von Bogdandy, Michael Ioannidis, “Systemic deficiency in the rule of law: What it is,

what has been done, what can be done”, CMLR 51: 59–96, at 62–63.

56

 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, Chapter. 2.

57

 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights,

Oxford University Press, 2013, at 159–172.

58

 Assanidze v Georgia, Application No 71503/01, 8 April 2004, at 129–130. See Chap.7 of this

book.

59

 See mainly Chaps. 7 and 8 of this book.

60

 Armin von Bogdandy, Michael Ioannidis, “Systemic deficiency in the rule of law: What it is,

what has been done, what can be done”, CMLR 51: 59–96, at 63.



Tài liệu bạn tìm kiếm đã sẵn sàng tải về

4 Ambitions of the EU in Promoting Democracy: Democracy Requires a Free Internet, but Not an Unprotected Internet

Tải bản đầy đủ ngay(0 tr)

×