European Council calls for protection of fundamental rights in the digital environment

The Council has adopted conclusions on digital empowerment to protect and enforce fundamental rights in the digital age.

These days, digitalisation infiltrates every facet of our society and personal lives. It is essential for this digital realm to be a space where fundamental rights are upheld, and individuals can assert their rights.

The text restates that fundamental rights are applicable both in online and offline contexts, emphasising the importance of ensuring everyone has the opportunity and support to gain essential digital skills. These skills are crucial not only for understanding and exercising rights, but also for fully benefiting from the growing array of online public and private services.

The conclusions focus on two core principles: empowering individuals and key sectors digitally, and establishing a secure digital environment that safeguards fundamental rights.

1. Digital empowerment of people and key sectors:

In the context that, according to Eurostat data, 46% of European citizens do not have sufficient basic digital skills, the Council invites Member States to take measures, such as:

• Promote adequate media and digital literacy.

• Take measures to ensure that everyone has equal access to online public services.

• Raise awareness of the importance of protecting privacy.

• Allocate funding to support education, training and skills development in digital media tailored to the needs of different groups of people.

2. Building a secure digital environment where fundamental rights are protected:

Various challenges, such as online disinformation leading to a decline in trust in institutions and media, pose threats to our digital environment. The increase in hate speech, hate crimes, and cyber violence further jeopardises our fundamental rights online.

While AI has the potential for significant positive impact, its use without adequate transparency, safeguards, and quality controls can also pose challenges in upholding fundamental rights and combating discrimination.

To establish a secure digital environment, the Council urges Member States to, among other measures, persist in combating online hate speech. This includes enhancing the capabilities of judicial and law enforcement authorities to investigate and prosecute illegal online hate crimes and hate speech.

The European Commission is also invited to combat online disinformation and illegal content by monitoring and enforcing the rules of the recently adopted Digital Services Act, and by regularly assessing the implementation of the 2022 Strengthened Code of Practice on Disinformation, as well as the Code of Conduct.


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European Council paves the way for a future common European asylum and migration policy

The representatives of the Member States of the Union have come to an agreement on the final component of a common European asylum and migration policy. At a meeting of the Council’s permanent representatives committee, Member States sealed their negotiating mandate on a regulation for crisis situations. This includes the instrumentalisation of migration and force majeure in the area of migration and asylum. This position must form the basis for negotiations between the presidency of the Council and the European Parliament.

Several European political representatives consider it a major step forward on a critical issue for the future of the EU. With the agreement, a better position is achieved to reach an agreement on the entire asylum and migration pact with the European Parliament later this year.

The new regulation establishes the framework that would allow Member States to address crisis situations in the field of asylum and migration by modifying certain rules, such as those regarding the registration of asylum applications or the asylum border procedure. These countries could also request solidarity and support measures from the EU and its member states.

In the case of a crisis or force majeure, Member States may be allowed to apply specific rules on asylum and the return procedure. In this regard, among other measures, the registration of applications for international protection may be completed no later than four weeks after the application is made, thus lightening the burden on overloaded national administrations.

A Member State facing a crisis situation may request solidarity contributions from other countries of the Union. These contributions may take the form of:

  • Relocation of asylum seekers or international protection beneficiaries from the Member State in crisis to contributing Member States.
  • Responsibility trade-offs, i.e., the supporting Member State would assume responsibility for examining asylum applications with the aim of relieving the Member State in a crisis situation.
  • Financial aid or alternative solidarity measures.

In accordance with the principles of necessity and proportionality, and in full compliance with the fundamental rights of third-country nationals and stateless persons, these exceptional measures and solidarity support require the authorisation of the Council.

The regulation tackling crisis situation and force majeure in the area of migration and asylum is part of the New Pact on Migration and Asylum proposed by the European Commission on September 23, 2020. The pact encompasses a set of proposals to reform EU migration and asylum rules. In addition to the crisis regulation, the asylum and migration management regulation and the asylum procedure regulation are other baseline proposals.


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New EU law to modernise judicial cooperation on terrorism cases

The European Council has finally given the green light to a new EU law that will boost the exchange of digital information between national authorities and Eurojust for terrorism cases. Due to an enhanced information-sharing process on investigations and the prosecution of terrorist acts, authorities of member states and EU agencies will gain access to the most comprehensive and current data on terrorism cases.

Several European authorities have already expressed their satisfaction with the approval of this law, as it represents a qualitative leap in terms of information sharing between the member states and Eurojust, and will allow significant progress in the prosecution of terrorist crimes.

Until now, member states shared information with Eurojust on terrorism-related cases through various, not always secure, channels. In addition, the current judicial anti-terrorist registry does not allow for proper cross-checking of information.

The approved regulation should address these shortcomings and enable Eurojust to play a greater role in supporting coordination and cooperation between national authorities investigating and prosecuting terrorist offences.

Under the new rules, member states will have to provide Eurojust with information on any criminal investigations related to terrorist offences as soon as these cases are transferred to the judicial authorities. As established, the new legislation should:

Create a modern, digital case management system that stores this information and allows it to be cross-referenced.

Empower Eurojust to better detect links between transnational investigations and prosecutions in the field of terrorism and to proactively inform Member States of links found.

Create a secure digital communication channel between Member States and Eurojust.

Simplify cooperation with third countries by granting liaison prosecutors appointed at Eurojust access to the case management system.


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New regulatory framework against crypto-asset transfers

The European Union is making it even more difficult for criminals to avoid the various anti-money laundering regulations using cryptocurrencies.

The European Council has adopted an update to the rules on information accompanying transfers of funds that extends the regulation’s scope of application to include crypto-asset transfers.

This ensures financial transparency of crypto-asset transfers and provides the Union with a robust framework that complies with the highest international standards on crypto-asset exchanges, so that crypto-assets are not used for criminal purposes.

Sweden’s Minister of Finance, Elisabeth Svantesson, considers the Council’s adoption of this regulation as an important step forwards in the fight against money laundering. This is bad news for those who misuse crypto-assets for their illegal activities, to avoid EU sanctions, or to finance terrorism or war.

With the adoption of these rules, crypto-asset service providers are required to collect certain information on the sender and beneficiary of asset transfers made through their services, regardless of the amount of the transaction, and to provide access to this information. This ensures the traceability of crypto-asset transfers, so they can be better detected and blocked in the case of possible suspicious transactions.

In parallel, the EU establishes a regulatory framework for crypto-assets, their issuers and their service providers. Accordingly, crypto-asset markets (MiCA) will, for the first time, have an EU-wide framework just for this sector.

The MiCA Regulation should protect investors by improving transparency and establishing a comprehensive framework for issuers and service providers, and will also ensure compliance with anti-money laundering regulations. The new regulations include issuers of consumer tokens, asset referenced tokens and the so-called stable cryptocurrencies, as well as service providers, such as trading venues and wallets where crypto-assets are stored. This regulatory framework aims to protect investors and ensure financial stability, while facilitating innovation and fostering the attractiveness of the crypto-asset sector.

Furthermore, in view of the global nature of crypto-asset markets, the regulatory framework introduces a harmonised regulatory framework in the European Union, which is an improvement over the current situation, where national legislation exists only in some member states.

The European Council adopted its negotiating mandate on the Regulation on crypto-asset markets on 24 November 2021, while the proposals on strengthening anti-money laundering and terrorist financing rules were adopted on 20 July 2021. The latter also includes the proposed creation of a new EU authority to combat money laundering.


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The European Council approves regulation to improve and digitise cross-border judicial cooperation

The European Council has approved a new EU law establishing a digital platform that will facilitate exchanging information between prosecutors and judges working together to bring criminals to justice.

Gunnar Strömmer, Swedish Minister of Justice, believes that criminal activities do not stop at borders and cross-border investigations are essential to reduce crime.

This digital platform should make it easier for law enforcement and judicial authorities to share information and evidence and communicate with colleagues in other countries.

The platform is designed to facilitate the coordination and daily management of joint research teams (JIT). It will also allow the exchange and temporary storage of information and operational evidence, guaranteeing secure communication and enabling the traceability of evidence.

The platform will be connected to the IT tools used by the authorities participating in the JITs. Institutions will strongly recommend the use of the platform, although its use will be voluntary.

Eu-LISA, the European Union’s agency for the operational management of large-scale IT systems in the area of freedom, security and justice, will be responsible for designing, developing and operating the platform.

Joint investigation teams bring together, for a limited period of time, authorities from two or more EU and possibly third countries for specific cross-border criminal investigations. The members of these teams will be able to exchange evidence directly with each other, without the need for traditional judicial cooperation procedures.

JITs have been in place since 2002 but have been faced with a number of technical difficulties related, for example, to the secure electronic exchange of information and evidence and to secure electronic communication.

The new regulation will enter into force on the twentieth day following its publication in the Official Journal of the European Union and will be directly applicable to all European Union countries.

The platform’s operational start date shall be, at the latest, two and a half years after the entry into force of the regulation.


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European agreement to improve cross-border access to electronic evidence

The ambassadors of the European Union member states have confirmed the agreement reached between the presidency of the Council and the European Parliament on the draft regulation and the draft directive regarding cross-border access to electronic evidence. The agreed texts will allow competent authorities to address electronic evidence warrants directly to service providers in another Member State.

The agreement responds to a key request from law enforcement, as more and more crimes are planned or committed online, and authorities need the tools to prosecute them as they do for offline crimes. The new rules will allow judges and prosecutors to act quickly, accessing the evidence they need, regardless of where it is stored, before it disappears.

The regulation on European orders for the production and preservation of electronic evidence in criminal proceedings aims to introduce an alternative mechanism to existing international cooperation and mutual legal assistance tools. It specifically addresses the problems arising from the volatile nature of electronic evidence and the aspect of loss of location by establishing new procedures for fast, efficient and effective cross-border access.

The regulation creates European production and preservation orders that can be issued by judicial authorities in order to obtain or preserve electronic evidence regardless of where the data is located. These orders can cover any category of data, including subscriber, traffic and content data. A threshold has been set for traffic data (except for data requested for the sole purpose of identifying the user) and for content data. They may only be requested for offences punishable in the issuing country by a maximum prison sentence of at least three years, or for specific offences related to cybercrime, child pornography, counterfeiting of non-cash means of payment or terrorism.

There is a mandatory 10-day deadline to respond to a production order. In duly established cases of urgency, the period may be reduced to eight hours. Service providers may face penalties if they fail to comply with an order. Financial penalties of up to 2% of their total annual worldwide turnover for the previous year may be imposed.

Except in cases where the issuing authority considers that the crime has been committed or is likely to be committed in the issuing country or the person whose data is requested resides in its own territory, a notification system will be set up for traffic data and content data. The purpose of this notification is to inform the executing state and give it the opportunity to assess and, if necessary, raise one or more of the grounds for refusal provided by law, such as the requested data being protected. The executing state will have 10 days or, in emergency situations, 96 hours, to lift the grounds for denial. If this occurs, the service provider must stop the execution of the order and not transfer the data and the issuing authority shall withdraw the order.

The directive on the designation of establishments and appointment of legal representatives for the collection of electronic evidence in criminal proceedings will be an essential instrument for the implementation of the regulation. The rules applicable to the appointment of the legal representatives of service providers or to the designation of their designated establishments responsible for receiving and responding to these orders are established. This is necessary due to the lack of a general legal requirement for non-EU service providers to be physically present in the Union. In addition, legal representatives or establishments designated under this directive could also participate in national procedures.


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Australia’s electronic surveillance framework reform process

The Internet and digital communications have forever changed the way we live, work and do business. These technological advances have undoubtedly improved many aspects of our lives. However, they were also adopted and exploited by criminals, terrorists and other dangerous parties. Australian laws have struggled to keep up, creating significant challenges for agencies with a legitimate need to exercise electronic surveillance powers.

Law enforcement agencies, including anti-corruption bodies, and the Australian Security Intelligence Organisation (ASIO) sometimes require access to specific information.

The objective of this electronic surveillance reform is to develop a new single law that:

  • better protects people’s information and data, including reflecting what it means to communicate in the 21st century;
  • ensures that law enforcement agencies and ASIO have the powers they need to investigate serious crimes and security threats;
  • is transparent and usable for operational agencies and supervisory bodies, as well as for the industry that must comply with the obligations of the framework;
  • modernises and streamlines as much as technologically possible, by updating key concepts and clearly identifying the agencies that may request access to this information;
  • contains adequate thresholds and robust, effective and consistent controls, limits, safeguards and oversight on the use of these intrusive powers;
  • protects the community from serious crimes and threats.

Without access to this information, law enforcement would not be able to prevent and prosecute the most serious criminal activities, such as child sexual abuse, organised crime and cybercrime. For ASIO, accessing this information and data is crucial to protect Australia from serious national security threats, such as terrorism or foreign interference in Australian democratic institutions.

The protection of and access to this information and data is governed by a number of laws:

  • the Telecommunications (Interception and Access) Act of 1979 (TIA Act)
  • the Surveillance Devices Act of 2004 (SD Act)
  • parts of the Australian Security Intelligence Organisation Act of 1979 (ASIO Act)
  • parts of the Telecommunications Act of 1997 (Telecommunications Act)
  • discrete parts of other Commonwealth and state and territory laws.

These laws protect various types of information and data of individuals from unauthorised access and only allow government agencies to lawfully access information and data under limited circumstances. The laws also require companies that own telecommunications to provide services to protect this information and to help government agencies access it in certain situations.

The reform bill aims to repeal the TIA Act, the SD Act and the relevant parts of the ASIO Act and replace the current patchwork of laws with a single, streamlined and technologically neutral law.

The development of the new framework will be Australia’s largest reform of national security laws in more than four decades. The new framework will be developed in line with the principles and values that underline Australia’s liberal democratic society. It is therefore essential that the policy underpinning the new framework is informed by the views of those involved, stakeholders and Australian society.


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Controversial Citizen Security Law enters into force in Colombia

On January 25, Colombian President Ivan Duque passed the Citizen Security Law, a regulation that was presented after the protests of 2021 and which he considers a triumph of legality despite having been a source of controversy, since it opens the door to the use of weapons in self-defence.

One of the main criticisms that the law receives is that it opens the possibility to the use of weapons as long as it is in self-defence against an unjust aggression, without any subsequent criminal responsibility.

As explained by the website, in an act that took place in the Casa de Nariño and in which different representatives of the Administration were present, the president passed three emblematic laws: a new disciplinary statute for the National Police, the Transformation and Professionalisation of the National Police and a National Security Law. The Colombian government considers that these three regulations contribute principles such as human rights, protecting life and defending citizens’ property.

Specifically, they consider that the Citizen Security Law gives peace of mind to the people, especially the peasantry and the business community, as it will prevent anyone from forcibly taking away their property, which can only be claimed by a competent authority. Likewise, the President believes that this is a new and necessary regulation that closes the gaps in criminality.

Ministers such as those of the Interior – Daniel Palacios – or of Justice – Wilson Ruiz – consider that the laws are desired and expected, guaranteeing rights and freedoms, and aimed at fighting crime and protecting citizens.

From now on, soldiers and policemen, according to the Government, will have a law that represents them and with a disciplinary regime that allows them to be protected, but requires them to act with excellence.

The Citizen Security Law is described by the opposition as an initiative that criminalises protest. In fact, this law was presented after the demonstrations that took place in Colombia in 2021, which began because of a tax reform proposal and lasted about two months, during which there were reports of serious human rights violations, especially abuse of police force, episodes of vandalism and armed civilians shooting at demonstrators.

One of the main criticisms of the law is that it provides for privileged self-defence when the victim defends himself or herself against whoever illegally enters their home or vehicle.

It also amends the Penal Code to increase the penalties for those who commit crimes against members of the security forces or human rights defenders, while the penalties for those who interfere with infrastructures intended for citizen security, mass transportation or military or police facilities will be from 48 to 144 months.


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EU Council adopts conclusions on the EU’s cybersecurity strategy

In March 2021, the European Council adopted conclusions on the EU’s cybersecurity strategy for the digital decade. This strategy was presented by the Commission and the High Representative for Foreign Affairs in December 2020. It outlines the framework for EU action to protect citizens and businesses from cyber threats, promote secure information systems and protect a global, open, free and secure cyberspace.

The conclusions note that cybersecurity is essential for building a resilient, green and digital Europe. They set as a key objective achieving strategic autonomy while preserving an open economy. This includes reinforcing the ability to make autonomous choices in the area of cybersecurity, with the aim of strengthening the EU’s digital leadership and strategic capacities.

In its conclusions, the Council highlights a number of areas for action in the coming years, including:

– The plans to create a network of security operation centres across the EU to monitor and anticipate signals of attacks on networks.

– The definition of a joint cyber unit which would provide a clear focus for the EU’s cybersecurity crisis management framework.

– Its strong commitment to applying and swiftly completing the implementation of the EU 5G toolbox measures and to continuing efforts to guarantee the security of 5G networks and the development of future network generations.

– The need for a joint effort to accelerate the uptake of key internet security standards, as they will be instrumental for increasing the overall level of security and openness of the global internet while increasing the competitiveness of EU industry.

– The need to support the development of strong encryption as a means of protecting fundamental rights and digital security while at the same time ensuring the ability of law enforcement and judicial authorities to exercise their powers both online and offline.

– Increasing the effectiveness and efficiency of the cyber diplomacy toolbox paying particular attention to preventing and countering cyberattacks with systemic effects that could affect supply chains, critical infrastructure and essential services, democratic institutions and processes and undermine economic security.

– The proposal on the possible establishment of a cyber intelligence working group to strengthen the EU’s dedicated capacity in this domain.

– The importance of strengthening cooperation with international organisations and partner countries in order to advance the shared understanding of the cyber threat landscape.

– The proposal to develop an EU external cyber capacity building agenda to increase cyber resilience and capacities worldwide.

In order to ensure the development, implementation and monitoring of the proposals presented in the cybersecurity strategy, the Council encourages the Commission and the High Representative to establish a detailed implementation plan. The Council will also monitor the progress in the implementation of the conclusions through an action plan which will be regularly reviewed and updated.


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Norway seeks to decriminalise drug use

Norway’s government has submitted a bill to Parliament to decriminalise the possession of small amounts of drugs for personal use, a measure aimed at replacing punishment with treatment. The approach is identical to the one proposed in Portugal, for example.

The use and possession of illicit drugs will continue to be illegal, but instead of sanctions, people who are found in possession of small quantities will be referred to a mandatory municipal counselling service, where they will receive information about the risks and the negative consequences of drug use and be offered help, treatment and follow-up.

The Norwegian executive -led by the Conservative Party of current Prime Minister Erna Solberg along with the Liberal Party- argues that changing the policy is justified because several decades of criminalisation have proved unsuccessful, and prosecuting consumers only contributes to stigmatisation and social exclusion, dissuading them from seeking help for fear of being sanctioned.

According to the latest official data, in 2018, 286 people died from a drug overdose in Norway, whose rate of drug-related deaths is much higher than the European average.

Given that many drug addicts use multiple types of narcotics, the bill says that a person may have up to three different substances at any time, as long as neither exceeds the specified threshold. By contrast, the possession of higher quantities or any other type of involvement with illegal drugs, such as importation, manufacture or sale, will continue to be a punishable offence.

Norway’s debate on decriminalising drug use began in 2016; its proposal for the reform of its drug policy is based on a report prepared by an expert committee which was set up by Parliament two years ago, although the final bill reduces the permitted amounts so as not to facilitate trafficking and access. The Liberal-Conservative government only controls a minority in the Norwegian Parliament, so it will need support from the opposition to push the reform through, and, as yet, not all the parties have made their position on the matter clear. Opponents of the move include the Christian Democrats, who form part of the ruling coalition. However, they are expected to vote in favour of the bill out of loyalty.  


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