January 09, 2024
By Cristina Cocito
In Glukhin v. Russia of 4 July 2023, the European Court of Human Rights (ECtHR) delivered an important ruling on the fundamental rights implications of technology. The case concerns compliance of facial recognition technology (hereafter FRT) with human rights. The judgment underlines the ‘highly intrusive’ nature of FRT. Most importantly, it finds that a blanket use of FRT by police officials for the identification of protesters would violate fundamental rights unless detailed rules on this use and adequate safeguards against arbitrariness are in place. This is of utmost importance for live FRT, i.e. real-time FRT collecting biometric data on mass-scale level.
Facial recognition, defined as a ‘probabilistic technology that can automatically recognise individuals based on their face in order to authenticate or identify them’ (EDPB), is the most widely used type of biometric identification. FRT is regularly used on CCTV cameras to process biometric data, a type of personal data that the General Data Protection Regulation classifies as sensitive data (Art 9) and for which consents processing only in exceptional circumstances.
In Glukhin v. Russia, the Court touches upon some key issues raised by FRT in light of fundamental rights, which have also been subject of discussion in the context of FRT’s regulation in Europe. While FRT can ease law enforcement operations in the identification of individuals or alleged criminals, it is accepted that it can interfere with, and potentially violate, fundamental rights. In this ruling, the Court was asked to consider the implications of FRT on individuals’ freedom of expression and the right to privacy.
Since 2017, Moscow has seen a swift increase in the quantity of CCTV cameras patrolling the city (about 220,000 cameras by 2022) many of which equipped with FRT (Glukhin v. Russia para. 5).
In August 2019, Nikolay Glukhin was convicted of administrative offences after he staged a demonstration by himself in the Moscow’s underground. His demonstration merely consisted of his using of a cardboard figure of an activist whose arrest prompted people’s dissent earlier that month. Because of his personal protest, Glukhin was taken in custody after being identified by surveillance cameras placed in the Moscow underground. The police also used pictures found on Telegram against him. His charges concerned the absence of a notification required by domestic legal regulation on how to lead public events in Moscow. The Public Events Act mandates people planning to hold public events, such as protests, employing a ‘quickly (de)assembled object’ to inform the municipality (section 5(5) of the Act) because of the risk of causing public or traffic disruption.
Glukhin challenged this decision before the ECtHR following a failed appeal at domestic level. He argued that his conviction and the processing of his personal data by means of FRT amounted to a violation of his freedom of expression (Article 10 ECHR) and his right to private life (Article 8 ECHR) respectively. Besides claiming that the cardboard did not equate to a ‘quickly (de)assembled object,’ he reasoned that the minor nature of its protest did not raise a ‘pressing social need’ that could justify his detention.
As for his claim under privacy, he claimed against the vagueness of the FRT’s legal basis and the absence of a legitimate aim for the interference that was also not ‘necessary in a democratic society’. Article19, a civil rights organization, intervened as a third party to stress further the potential fundamental rights challenges raised by FRT and demands for adequate legal safeguards.
The claimant’s detention occurred before 16 September 2022, meaning that even though Russia is no longer a party to the ECHR since that date, the ECtHR first declared to have jurisdiction over the issue. After assessing the relevant legal framework at domestic, European, and international level, the Court examined alleged violations of Articles 10 and 8 ECHR claimed by the applicant, eventually ruling unanimously on both claims.
In terms of Article 10, the ECtHR firstly assessed the existence of an interference, noting that the police’s measures against the applicant did interfere with his freedom. According to the Court, however, Glukhin’s non-disturbing demonstration could not justify such operations. Their interference with the applicant’s freedom of expression was found not necessary in a democratic society – one of the requirements of the Court’s three-pronged test – and hence amounted to a violation of Article 10 ECHR.
In terms of Article 8, the Court again examined whether there was an interference with Glukhin’s rights. The Court firstly assessed the scope of privacy under Article 8. Secondly, it added that, because of the lack of records of police’s FRT use, Glukhin was impeded to substantiate his allegations about the use of FRT in the proceedings against him. Nonetheless, the Court accepted the applicant’s claim that FRT (live and ex-post) was indeed deployed in his case as nothing else could explain the applicant’s quick identification. At the same time, the government also tacitly admitted its use. The Court established that the applicant’s privacy was therefore interfered with when his personal data were processed.
The Court thoroughly applied its three-tiered test to assess whether such interference was justified. First, the law implementing the police’s measures did not fulfil the ‘quality of the law’ standards. According to Court’s jurisprudence, for an interference to meet the quality of the law, domestic law ought to be foreseeable and accessible. The Court found that the law was not only broad, but it also lacked limitations and procedural safeguards. The ‘highly intrusive’ nature of FRT, particularly live FRT, requires strong rules and justifications, heightened protection, and strong safeguards against possible abuse.
The Court emphasized that detecting crime is a legitimate aim. However, the use of FRT and the consequent police’s conviction had been disproportionate in the absence of any risk to public safety and order linked to Glukhin’s peaceful protest. In the end, there had been no pressing social need to employ the technology, and using it was not necessary in a democracy. As a result, the Court determined that Article 8, in addition to Article 10, of the Convention had been violated.
The ECtHR’s ruling in Glukhin v Russia adds one more piece to the wider regulatory debate concerning the use of FRT in the European Union. The regulation of biometric identification technology has divided European institutions. Their divergences on this matter have emerged during the legislative negotiations for the European Artificial Intelligence Act’s approval. Whereas the European Commission and the Council have opted for maintaining few exceptions to the outlaw of live FRT for law enforcement purposes, the Parliament, backed by civil rights organizations such as Amnesty and Article19, have lengthily stand for a full-fledged prohibition. In their view, FRT cannot be deemed compatible with European and democratic values. The Parliament voted in support of such an all-encompassing ban on live FRT during the AI Act’s negotiations in June 2023.
Despite this lengthily upheld position, the European Parliament has yet recently departed from its original approach by accepting limited exceptions to the prohibition on live FR for law enforcement during the December-2023 trilogue negotiations. Against this backdrop, the ECtHR’s ruling does not add any substantive novelty to the European institutions’ position about FRT regulation reached on 8 December 2023 (permitting FRT exceptions for law enforcement). Similarly, it does not set any precedent that could lead to a change of course favoring human rights activists demanding for a general outlaw of FRT.
Civil rights activists seem to still hail the ECtHR’s ruling as an achievement. The third party intervener in Glukhin v. Russia, Article19, which claims for the stop of research and implementation of FRT, has praised the ruling as ‘groundbreaking.’ However, when viewed through the prism of protecting fundamental rights, the decision has both strengths and flaws.
On the one side, the Court partly sheds light on widespread concerns about FRT, particularly in light of fundamental rights. Significantly, the Court choses maximal terms to label FRT as ‘highly intrusive’ (‘the use of highly intrusive facial recognition technology to identify and arrest participants of peaceful protest actions could have a chilling effect’ para. 88). Accordingly, the Court stresses that FRT as a surveillance technology requires a ‘high’ level of justification to be deemed ‘necessary in a democratic society’, the highest level of rights’ protection when used to collect political opinions’ data, and strong legal safeguards for individuals. This applies more significantly to live FRT. Besides, the Court importantly reiterates that people do have a legitimate expectation of privacy even when acting in public in what it refers to as their ‘private social lives.’
Another prominent concern about surveillance technology brought up by the ECtHR relates to how affected people can support their claims against FRT when there is no evidence of it. The opacity of FRT has not only also implications for individuals’ rights to a fair trial (Article 6 ECHR), but also challenges the principles of and right to good administration, for instance provided by the EU Charter of Fundamental Rights. With its reasoning, the Court remarkably stands with applicants struggling to demonstrate that they are target of surveillance techniques. Nonetheless, no mention is made to a possible impairment of the applicant’s right to a fair trial enshrined in Article 6 ECHR.
The Court yet importantly underlines other fundamental rights implications of FRT. As also reported by Article19, FRT generates chilling effects on other rights, and it is also not in line with ‘ideals’ and ‘values’ of a rule of law democracy.
Despite these relatively strong remarks, the Court went not that far as to further assess whether FRT is by its very nature incompatible with the essence of Article 8. As pointed out by other scholars, the Court has not either delved into assessing whether FRT is categorically incompatible with the Convention, including on other bases such as proportionality. The Court in fact limited itself to assess whether the data processing was justified pursuant to Article 8(2) ECHR. As a result, the Court’s examination was narrowly focused and limited. This relatively ‘uninvolved’ or poorly proactive approach does not depart from the Court’s standard approach in other mass surveillance proceedings, e.g. Big Brothers Watch. Those scholars attribute this Court’s stance to the political implications possibly implied by the decision.
The ECtHR’s silence on this may even mean that a fundamental rights-based prohibition of live FRT should be dismissed, thus aligning with EU institutions’ position reached at AI Act’s negotiations. Despite the prima facie significance of the Court’s ruling, civil rights organizations may be rather discontent with the Court’s laid-back approach which only seems to provide minimum human rights protection.
The Court’s approach seems also elusive or insufficiently developed. For instance, the Court does not assess in more detail the different implications possibly raised by distinct types of FRT on the claimant’s privacy. Furthermore, the Court highlights that laws on FRT ought to clarify the type of data collected. As also noted by other scholars, however, the Court does not consider that live FRT targets every individual equally and that a clarification or distinction between types of data may not be fully irrelevant in this context.
The ECtHR’s decision is significant because it comes at time of vivid discussions about the potential consequences of mass-surveillance technologies on fundamental rights. It highlights several issues with this kind of technology, chief among them being how invasive as well as opaque this technology can be and the high level of legal protection that it requires. Nonetheless, the Court’s rather elusive and vague approach leaves a number of unanswered concerns, one of which is whether such technologies are intrinsically compliant with human rights. With this ruling, the Court may have missed another salient chance to position itself more firmly within the debate concerning mass-surveillance technology’s compliance with fundamental rights.