Roundtable discussion «The constitutional dimension of digital human rights through the lens of national and international practice» (Moscow, 21-22 May 2021)

1. Mikhail Fedotov, Director of the International Scientific and Educational Center UNESCO Chair in Copyright, Related, Cultural and Information Rights of the Higher School of Economics, Doctor of Law, Professor, Honored Lawyer of the Russian Federation.

Topic: Digital Rights and Individual Autonomy in Social Networks

2. András Sajó, Doctor of Law, Professor, Legal Studies Department, Central European University, Budapest, Member of the Hungarian Academy of Sciences.

Topic: The Internet in the context of ECHR practice.

3. Vera Rusinova, Doctor of Law, Head of International Law Department, Higher School of Economics, Moscow.

Topic: Privacy and the Legalisation of Mass Surveillance: In Search of a Second Wind for International Human Rights Law.

This paper revisits the traditional trade-off between privacy and security, which underpins the compatibility of general and indiscriminate mass surveillance with international human rights instruments, and extends the orthodox patterns of legal argumentation using interdisciplinary knowledge, which is able to nurture, and to be translated into, the language of International Human Rights Law. In search of new resources and a second wind for the overburdened legal concept of privacy, this research combines a positivistic legal perspective with knowledge from sociologically framed surveillance studies, political theory, behavioural economics, and computer science, and deals with the threats and responses there to from this epistemological standpoint. The first of three threats singled out in the paper—the ‘securitisation’ of the danger of terrorism—is treated through embedding the effectiveness of predictive algorithms to the proportionality test. A consensus of ‘Big Brothers’ to use mass surveillance tools as the second threat is considered using constitutional theory and the bridge of the ‘democratic society’ component included in some international human rights instruments to transpose issues of fair representation to the standard of review. The third threat is the shift of social norms towards the permissibility of being watched. Resources to cope with this challenge can be found in the complementation of an individual reading of privacy as a right and a value by a collective one, which follows a primarily socio-economic trend to consider privacy as a public good.

4. Svetlana Nesmiyanova, Doctor of Law, Professor, Constitutional Law Chair, Ural State Law University, Ekaterinburg.

Topic: Development of international and national legal regulation of rights and freedoms on the Internet.

Nowadays the one of the concept under discussion is to adopt a number of international and national acts, which contribute to the understanding of new rights or the relations between digital and real rights (the Universal Declaration of Digital Rights, the Digital Constitution. At the same time, it is necessary to decide the issue of who should regulate these new rights: should it be the states or self-regulation. It should be noted that not only digital rights themselves are subject to regulation, but also their limits, restrictions, protection and provision. Important issues herewith are the protection of personal data, the prevention of offenses in this area, the analysis of court practice aimed at ensuring digital rights.

5. Judith Rauhofer, Legal Officer, Digital Freedom Fund.

Topic: Digital rights are human rights: The emerging consensus for a global data protection right.

6.Elena Gritsenko, Doctor of Law, Professor at the University of Saint-Petersburg on the Law Faculty, Department of Constitutional Law.

Topic: Right for Good Governance in the context of Digitalization.

7. Andrey Rumyantsev, Dr. jur., Deputy Editor-in-Chief, “Comparative Constitutional Review” journal.

Topic: Separation of digital rights: comparative historical analysis of conditions.

If we want to understand whether it makes sense to consider digital rights as a separate category, it is useful to study the already existing categories of rights. For purpose of this report we would distinguish between three categories of individual rights, which also form different generations: personal rights (or: freedoms) , political rights and social/economical rights. All these categories/generations were established due to specific causes that we try to identify. Then on this basis, we try to elaborate casual relationships that lead to emergenсe of rights of a new category/generation. Knowing these rules can help us predicting the development in the future, epistemologically as well as regulatorily.

8. Galina Arapova, Director, Media Rights Protection Center*, practicing lawyer.

Topic: Conflict between “information security” and digital human rights: trends in legislative regulation and judicial practice.

9. Andrey Shcherbovich, Ph.D. in Law, Lecturer at Free University, Moscow, O’Brien / IIE‐Scholar Rescue Fund Fellow in Residence, MacGill University, Canada.

Topic: Russia’s participation in the diplomatic process based on a multistakeholder approach in the creation of international norms in the field of cybersecurity.

11. Ekaterina Kazmina, Ph.D in Law, Russian Presidential Academy of National Economy and Public Administration (RANEPA), the Altai branch, head of the Department of Constitutional and International Law.

Topic: The right to be protected from information in a digital reality: the other side of freedom.

Freedom of information, being an unconditional element of a modern democratic society, in the conditions of the development of digital technologies, on the one hand, is a subject to constant encroachment, on the other hand, it requires an objective assessment, taking into account a large information flow from the point of view of the possibility of refusing to receive information, delimiting anyone from it. It’s conditioned by the need to preserve the psychological health of citizens and to protect the right to refuse to receive information. At the same time, modern technologies do not always allow the possibility of establishing restrictions in the amount and quality of information received, and moreover, they have a difficultly controlled influence on the formation of an opinion regarding a particular event, consumer’s attitude to a certain type of product or service. These facts require an assessment on the part of legal researchers and a search for legal regulation means to ensure the implementation of the principles of the legal status of an individual, including the principle of a harmonious combination of the rights and interests of an individual, society and the state.

12. Damir Salikhov, Ph.D in Law, Research Assistant, Department of Constitutional and Municipal Law, Moscow State University, Associate Professor, Public Law Department, Higher School of Economics.

Topic: Electronic voting in Russia: how to sail between Scylla and Charybdis.

Amendments to the Russian electoral law in the context of “coronavirus” lawmaking have introduced revolutionary changes, providing, among other things, for e-voting, previously used only as a one-off experiment. In the upcoming State Duma election e-voting is going to be organized in a number of regions, including a separate internet platform for Moscow. The legislation on e-voting proved to be very fragmentary and largely technical, but as the experience of foreign countries shows, the main problems of implementation of the institution are the issues of ensuring the fundamental principles of electoral law, including the principle of secrecy of the vote. The formation of an “environment of trust” in elections is possible only in conditions of transparent procedures and results, as well as the protection of voters’ rights, Legislator and law enforcer need to find a balance between the convenience and variability of ways to participate in elections and ensuring compliance with the fundamental principles of electoral law.

13. Natalia Moroz, PhD, Associate Professor, Associate Professor of the Department of Public Administration of the Law Faculty of BSU (Belarus).

Topic: The right to be protected from criminal threats in the digital environment in the face of pandemic: an international perspective.

14. Stanislav Vasilyev, Ph. D in Law, Associate Professor at the Department of Constitutional and Administrative Law of the Sevastopol State University.

Topic: On the subject composition in the process of protecting and protecting human rights in the digital age.

The development of modern social relations shows the formation of more and more subjects of constitutional law. A considerable part of public relations, in principle, is moving into the digital space, where new constitutional values ​​are being formed. The current legal regulation is much more conservative and cannot respond in a timely manner to the rapidly developing relations in this area. In this regard, some theoretical approaches are proposed to solve this obvious problem.

15. Snezhana Simonova, Ph.D in Law, Senior Lecturer, Department of Social and Family Law of the Yaroslavl’ State University.

Topic: Current issues of the human rights enforcement on digital platforms.Topic: The right to be protected from information in a digital reality: the other side of freedom.

The report deals with the constitution-based analysis of the role digital platforms play in ensuring human rights (HR). Some problematic points of the topic will be illustrated through the lens of Russian and foreign legal practice that has developed in the operation of well-known digital platforms and their experience in protection of information rights, digital security and privacy rights, freedom of opinion. All the above mentioned will be investigated in the context of popular social media, video hosting services, partner networks, and online services. Special attention is going to be paid to the consideration of the Russian new laws tackled on legal standing of the digital platforms and their responsibility. The cornerstone issue to discuss is the best possible interaction model the State and digital platforms can stick with regarding HR protection as well as the limits of state’s liability for the actions of online actors. To conclude the author will suggest the number of legal efforts that are necessary for the increasing of the level of HR enforcement on digital platforms and the ways to improve legal practice in this field.

16. Paulina Smykovskaya, IT-lawyer (Tik-Tok), Lecturer, Vysokovsky Graduate School of Urbanism, National Research University Higher School of Economics.

Topic: The relationship between the right to privacy and the right to personal data protection.

‘What is the relationship between the right to privacy and data protection?’ will be the key question of the presentation. The answer to this question allows to choose the most efficient method to protect one’s rights in each particular case depending on the circumstances. We will talk about the history of the privacy and data protection legal frameworks, look at the European practice of their application and discuss several Russian cases. We will conclude the analysis with recommendations for further development of the Russian practice.

* The Ministry of Justice on February 26, 2015 entered the Regional Fund “Center for the Protection of the Rights of the Mass Media” in the register of “non-profit organizations performing the function of a foreign agent.”

 


The event is carried out with the support of the European Union