Cyber Security / Cyber Crime, Digital Rights, Freedom of Association and Assembly / Protests, Hate Speech
The case of Udruženje Q za promociju i zaštitu kulture, identiteta i ljudskih prava queer osoba
Bosnia and Herzegovina
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The European Court of Human Rights held that Russia violated the rights to freedom of expression and to privacy by arresting and convicting an individual for a peaceful protest. An activist protested against his recent arrest by holding a cardboard cut-out of himself, with a phrase questioning his arrest, in a Moscow subway. Police identified him through the subway’s CCTV facial recognition technology and charged him with breaching public conduct. The national courts confirmed his conviction and he appealed to the Court. The Court found that the conviction infringed the right to freedom of expression because his demonstration was peaceful, and that the use of facial recognition technology was not necessary in the context of locating a peaceful protester and so infringed his right to privacy.
In May 2017 the mayor of Moscow, Russia, reported that CCTV cameras had been installed in the city and later that year some of them were equipped with facial recognition technology. In 2018, facial recognition cameras were installed in Moscow’s underground subway, and in 2019 the mayor announced that the city was trialling a facial recognition system. By September 1, 2020, all 175 000 CCTV cameras in the city had live facial recognition technology, and by 2022, there were 220 000 cameras on the system.
On August 12, 2019, a political activist, Konstantin Kotov, was arrested and charged under the Russian Criminal Code for breach of the rules on “public events”. On August 23, a Russian man, Nikolay Sergeyevich Glukhin, travelled on the subway with a life-size cardboard cut-out of Kotov with the phrase, “You must be f**king kidding me. I’m Konstantin Kotov. I’m facing up to five years [in prison] under [Article] 212.1 for peaceful protests.” [para. 7] Using the CCTV technology in the subway and public Telegram channels, police identified Glukhin and charged him with “breaching the established procedure for the conduct of public events” under the Code of Administrative Offences. The authorities alleged that he had performed a solo-demonstration and was obliged to give a prior notice to the authorities, and by failing to do so, had committed an offense. The Public Events Act (no. FZ-54 of 19 June 2004) provides that no notification is required for solo demonstrations, except where the demonstrator intends to use a “quickly (de)assembled object.” [para. 18] The police argued that the banner was a “quickly (de)assembled object”.
On September 23, 2019, Meshchanskiy District Court of Moscow convicted and fined Glukhin 20,000 Russian roubles (RUB), (approximately 283 euros).
Glukhin appealed, arguing that the demonstration was peaceful, and that the conviction violated his right to freedom of expression. The Moscow City Court Court dismissed his appeal, finding that the peaceful nature of his protect was irrelevant because his conviction was for failing to notify the authorities of his protest.
Glukhin then filed an application before the European Court of Human Rights arguing that his rights under Article 10 and Article 8 of the European Convention on Human Rights had been infringed.
Article 10 states:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 8 states:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The international non-governmental organization, Article 19, was granted leave to intervene.
The Third Section of the Court delivered a unanimous judgment. The central issue for determination was whether Glukhin’s arrest for a peaceful protest and through facial recognition identification were legitimate infringements of the rights to freedom of expression and to privacy.
Glukhin argued that the cardboard cut-out did not constituted a “quickly (de)assembled object” as it was only one piece. He submitted that local authorities “had showed zero tolerance towards his peaceful solo demonstration” and had not made any assessment about the risks of his demonstration or whether it was “necessary to arrest and convict him.” [para. 49] Glukhin submitted that his conviction was based on the evidence obtained through the CCTV facial recognition technology in the subway and that there had been no judicial order authorizing any collection of data on him. He argued that the Police Act was too vague and “did not provide either for a prior judicial authorisation or for any subsequent judicial control”, and therefore could not constitute a legitimate legal basis for the interference in his rights. [para. 60] He submitted that the collection of his data did not pursue any legitimate aim nor was it necessary in a democratic society as “his private life had been interfered with for the sole reason that he had held a peaceful solo demonstration.” [para. 61]
The Russian Government argued that all public events required prior notification under Russian law, and that all action taken against Glukhin was lawful.
Article 19 (a international NGO) argued that “facial recognition technology was to be used with the utmost caution and was to be attended by adequate legal safeguards” and that biometric mass surveillance was one of the greatest threats for human rights in the digital age. [para. 63]
The Court found that, as Article 10’s protection is not limited to the “spoken or written word”, Glukhin had exercised his right to freedom of expression by seeking to “express his opinion on a matter of public interest”. [para. 51] The Court noted that this form of expression has “little scope for restrictions under Article 10(2)”, and held that there had been an interference in his right.
In applying the tripartite test – whether the interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society – the Court held that the phrase a “quickly (de)assembled object” was vague and so the law under which Glukhin had been charged was “not sufficiently foreseeable” and so did not meet the requirement that the interference be prescribed by law. [para. 54] However, the Court stated that even if the interference had been prescribed by law and pursued a legitimate purpose it was not necessary in a democratic society. The Court held that Glukhin’s demonstration was “carried out in indisputably peaceful and non-disruptive manner” and that the main feature of his offense was a procedural failure to notify authorities. [para. 56] The demonstration did not have any negative effects on the rights of others, on the public transportation or on the public order. The Court found that the domestic authorities had not taken into account these factors, nor had they examined if his performance had constituted an exercise of free speech, and so had not shown “the requisite degree of tolerance towards [Glukhin’s] peaceful solo demonstration”. [para. 56] Accordingly, the Court held that there had been a violation of Article 10.
The Court examined the nature of the right to privacy under Article 8, and stressed that the right extends to the public space as it includes the right to a “private social life”. [para. 64] The right therefore allows for “a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life’.” [para. 64] The Court found that merely storing an individual’s data constitutes an interference with the right and that a person’s “reasonable expectations of privacy” in respect of the data collected is “a significant, although not necessarily conclusive, factor” in determining the legitimacy of the data collection. [para. 66] The Court described a person’s image as “one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers” and stressed that in order to protect her or his rights, a person is entitled “to object to the recording, conservation and reproduction of the image by another person”. [para. 66] The Court acknowledged that it had previously found violations in “collection and storing of data by the authorities on particular individuals … even if that data concerned exclusively the person’s public activities”, and “collection of data in a public place” [para. 67]
In the present case, the Court noted that, during routine monitoring, the police had found images of Glukhin on Telegram and then identified the venue of his protest as the subway and located CCTV footage. The police took screenshots of the Telegram and CCTC images and appeared to have used facial recognition technology to identify him.. The Court highlighted that as local laws do not require the police to record each time this technology was used, Glukhin would face difficulty in proving his allegations. However, the Court found that there was nothing in the images that would otherwise identify Glukhin and the government had not confirmed or denied the use of facial recognition technology and had, in fact, referred to the decree authorizing the use of the technology when explaining the legal basis for Glukhin’s arrest. Accordingly, the Court accepted that facial recognition technology had been used to identify and then arrest Glukhin which constituted an interference in his right to privacy.
The Court stressed that domestic law on the collecting and processing of personal data must have “clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness.” [para. 77] It added that data that reveals political opinions “fall[s] in the special categories of sensitive data attracting a heightened level of protection.” [para. 76]
The Court found that “the questions of lawfulness and of the existence of a legitimate aim cannot be dissociated from the question of whether the interference was “necessary in a democratic society”. [para. 78] The Court questioned whether the legal framework would meet the requirements for the “quality of law” requirement. [para. 83] The Court accepted that the purpose of fighting crime was a legitimate one and that it required the use of modern technology. However, it emphasized that its sole obligation in this case was to determine whether the processing of Glukhin’s data – and not the processing of this type of data in general – was “necessary in a democratic society”. One of the factors in this inquiry is the “nature and gravity of the offences in question” and the Court described Glukhin’s offence as “minor” as he was never convicted of “reprehensible acts during his demonstration”. [para. 88] It stressed that “the use of highly intrusive facial recognition technology to identify and arrest participants of peaceful protest actions could have a chilling effect in regard of the rights to freedom of expression and assembly”. [para. 88] Accordingly, the Court held that the use of facial recognition technology to identify Glukhin “did not correspond to a ‘pressing social need’,” and constituted a violation of his right to privacy under Article 8. [para. 89]
The Court awarded Glukhin 9 800 EUR in non-pecuniary damage and 6 400 EUR for legal costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court reiterated that authorities must show tolerance to peaceful protests, and identified that the use of facial recognition technology is “highly intrusive” and that in cases like this could have a chilling effect on the exercise of the rights to freedom of expression and assembly.
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