The last CAHDATA meeting (15-16 June 2016) finalised
its proposals and transmitted them to the Committee
of Ministers for consideration and adoption.
5.
The text of this explanatory report is intended to
guide and assist the application of the provisions of the
Convention and provides an indication as to how the
drafters envisaged the operation of the Convention.
6.
The Committee of Ministers has endorsed the
explanatory report. In this respect, the explanatory
report forms part of the context in which the meaning of certain terms used in the Convention is to be
ascertained (note: ref. Article 31, paragraphs 1 and 2
of the United Nations Vienna Convention on the Law
of Treaties).
The Protocol was adopted by the Committee of
Ministers on 18 May 2018. The appendix to the Protocol
forms an integral part of the Protocol and has the same
legal value as the other provisions of the Protocol.
This Protocol was opened for signature in Strasbourg,
on 10 October 2018.
II.
Commentaries
7.
The purpose of this Protocol is to modernise
the Council of Europe Convention for the Protection
of Individuals with regard to Automatic Processing of
Personal Data (ETS No.108) and its Additional Protocol
regarding supervisory authorities and transborder
flows (ETS No. 181), and to strengthen their application. From its entry into force, the Additional Protocol
shall be considered an integral part of the Convention
as amended.
8.
The explanatory reports to Convention 108 and
to its additional protocol remain relevant in so far
as they provide historical context and describe the
evolution of both instruments, and they can be read
in conjunction with the present document for those
purposes.
Preamble
9.
The preamble reaffirms the commitment of the
signatory States to human rights and fundamental
freedoms.
10. A major objective of the Convention is to put
individuals in a position to know about, to understand
and to control the processing of their personal data
by others. Accordingly, the preamble expressly refers
to the right to personal autonomy and the right to
control one’s personal data, which stems in particular
from the right to privacy, as well as to the dignity of
individuals. Human dignity requires that safeguards be
put in place when processing personal data, in order
for individuals not to be treated as mere objects.
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11. Taking into account the role of the right to
protection of personal data in society, the preamble
underlines the principle that the interests, rights and
fundamental freedoms of individuals have, where
necessary, to be reconciled with each other. It is in
order to maintain a careful balance between the different interests, rights and fundamental freedoms
that the Convention lays down certain conditions
and restrictions with regard to the processing of
information and the protection of personal data. The
right to data protection is for instance to be considered alongside the right to ‘freedom of expression’
as laid down in Article 10 of the European Convention
on Human Rights (ETS No. 5), which includes the
freedom to hold opinions and to receive and impart
information. Furthermore, the Convention confirms
that the exercise of the right to data protection, which
is not absolute, should notably not be used as a
general means to prevent public access to official
documents.4
12. Convention 108, through the principles it lays
down and the values it enshrines, protects the individual while providing a framework for international
data flows. This is important as global information
flows play an increasingly significant role in modern
society, enabling the exercise of fundamental rights
and freedoms while triggering innovation and fostering social and economic progress, while also playing a
vital role in ensuring public safety. The flow of personal
data in an information and communication society
must respect the fundamental rights and freedoms
of individuals. Furthermore, the development and
use of innovative technologies should also respect
those rights. This will help to build trust in innovation and new technologies and further enable their
development.
13. As international co-operation between supervisory authorities is a key element for effective protection of individuals, the Convention aims to reinforce
such co-operation, notably by requiring Parties to
render mutual assistance, and providing the appropriate legal basis for a framework of co-operation
and exchange of information for investigations and
enforcement.
Chapter I – General provisions
Article 1 – Object and purpose
14. The first article describes the Convention’s object
and purpose. This article focuses on the subject of
protection: individuals are to be protected when their
4.
See the Council of Europe Convention on Access to Official
Documents (CETS No. 205).