The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (generally referred to as “Convention 108”), enacted in 1981, is the only legally-binding international treaty dealing with privacy and data protection. The Convention is also of fundamental importance in providing the underlying legal framework for instruments such as the EU Data Protection Directive 95/46. So far, 42 countries have become parties to Convention 108.

As the European Commission reviews the EU Directive, the Council of Europe also is preparing to review Convention 108. The review will be conducted by the Council of Europe’s Consultative Committee on data protection (referred to as T-PD) in a process that will likely take several years. The T-PD, which meets at the Council of Europe’s headquarters in Strasbourg, is primarily composed of representatives of national governments and data protection authorities, with the International Chamber of Commerce being the only private-sector entity with formal observer status. The group has commissioned a legal study from an outside consultant to analyze Convention 108 and provide any recommended revisions by the end of 2010, and the T-PD will begin discussions at its upcoming meeting in November.

While it is far too early to speculate on what, if any, changes may be made to Convention 108, it seems safe to say the following:

  • Any changes to the fundamental data protection principles of Convention 108 are highly unlikely.
  • If changes are made, they would likely be in the form of an additional protocol to the Convention, similar to the Council of Europe’s adopted protocol dealing with data protection supervisory authorities and transborder data flows in 2001.
  • Review is likely to focus on the challenges to data protection caused by data processing on the Internet, and in particular, on whether there is a need for the recognition of new data protection rights.  

We will provide updates on the review process as they emerge.