Comment by phkamp
7 months ago
Somehow you overlooked that Article 8 has a second clause, even though it comes right after the bit you quoted ?
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.
There’s no such clause in current version (and it’s article 7, not 8).
https://eur-lex.europa.eu/eli/treaty/char_2012/oj/eng
And now you overlooked article 52 ?
It's really very simple: NO human rights are absolute.
I overlooked nothing, just pointed out that you are referring to a wrong document. But since you mention article 52... it cannot be taken out of context of the whole title VII. Yes, human rights are not absolute. It does not mean that they can be restricted arbitrarily. In case of digital surveillance there are already some legal precedents in EU (I know that in EU precedents are not binding, but they may serve as indication of possible decisions). E.g. in Germany installing spyware is now allowed only to investigate serious crimes, according to recent decision of the Constitutional Court.
Could you link the version you're reading. I don't see anything saying this in the version linked above. It reads to me like "there may be limitations put on these rights but only to protect other rights, and even then the essence/spirit of the law should be maintained".
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But the key words here are "in accordance with the law" and "necessary in a democratic society." That's a pretty high bar, not a free pass.
But it also leaves open the possibility for lawmakers to simply create a new law which allows snooping. What's "necessary in a democratic society" is also pretty open, and can change from one government to the next.
Scanning everyone’s messages does not meet the bar of necessity. Especially when you look at their reasoning, child safety. Every country in EU should be ashamed of the funding they give police to investigate and prosecute known abuse and abuse materials. When they’ve properly financed policing maybe then they can make an argument that additional steps are necessary but not before.
That is pretty much a carte blanche, not a high bar at all. We had house searches because someone called an official a dick.
The German "constitution" is simply not very good.
>That's a pretty high bar
Really? That reads as the lowest possible bar. The legislature just needs to pass a law that allows for the snooping and it is then in 100% compliance with that section. Not even to mention "necessary in a democratic society", I can't imagine wording more broad than that.
Which is /precisely/ what is going on right now:
ChatControl is a proposed new law, in compliance with the EU Treaty.
... Unless the EU courts find the law unconstitutionally broad.
And you can just say it is out of economic necessity and the constitution would mean shit, even with the EUs questionable legitimacy.
They shouldn't have even bothered with the first part.
That doesn't say what kind of interference, nor does it say anyone is required to provide assistance to them.