Convention 108: Present importance and implementation

Abstract

The purpose of this paper is to highlight the significance of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) in the overall system of personal data protection, especially from the perspective of non-EU countries that are members of the Council of Europe. This is attempted primarily through the evaluation of correlation between the Convention 108 and ECHR and GDPR in its segment that regulates relationship between the EU and third countries. The interest for the issue of personal data protection has been increasing among legal and ICT professionals, academics, government officials and even a general public over the years. This has been particularly intensified by adopting General Data Protection Regulation (GDPR). However, the adoption of the GDPR did not diminish importance of the Convention 108. On the contrary, it seems that the 'adequacy' principle regarding the third countries proclaimed by the GDPR, stresses its importance. The paper begins with the brief overview of the Convention 108 principles and the modernization that is brought by Protocol of 2018, which coincides with the entry into force of much-mentioned GDPR. It continues with analysis of the relationship between the GDPR and Convention 108, with focus on elements decisively influencing the assessment of the adequacy of the level of protection. Even though there is no sign of equivalence between the right to privacy and personal data protection these matters inevitably intersect in practice. Therefore, the final section of the text summarizes the cases of the European Court of Human Rights invoking Convention 108, with the aim to demonstrate how it is interpreted by the highest judicial instance in Europe.