(8.1) Relevant law

(8.1.1) Article 21 International Covenant on Civil and Political Rights

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

(8.1.2) Article 11 ECHR – Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

(8.2) The Protective Scope of the Right to Freedom of Assembly

UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), 17 September 2020, UN Doc CCPR/C/GC/37

1. The fundamental human right of peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies. The right of peaceful assembly is important in its own right, as it protects the ability of people to exercise individual autonomy in solidarity with others. Together with other related rights, it also constitutes the very foundation of a system of participatory governance based on democracy, human rights, the rule of law and pluralism. Peaceful assemblies can play a critical role in allowing participants to advance ideas and aspirational goals in the public domain and to establish the extent of support for or opposition to those ideas and goals. Where they are used to air grievances, peaceful assemblies may create opportunities for the inclusive, participatory and peaceful resolution of differences

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4. The right of peaceful assembly protects the non-violent gathering by persons for specific purposes, principally expressive ones. It constitutes an individual right that is exercised collectively. […]

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6. Article 21 of the Covenant protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof. Such assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.

(8.3) Restrictions to the Right of Freedom of Assembly

UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), 17 September 2020, UN Doc CCPR/C/GC/37

36. While the right of peaceful assembly may in certain cases be limited, the onus is on the authorities to justify any restrictions. Authorities must be able to show that any restrictions meet the requirement of legality, and are also both necessary for and proportionate to at least one of the permissible grounds for restrictions enumerated in article 21 […]. Where this onus is not met, article 21 is violated. The imposition of any restrictions should be guided by the objective of facilitating the right, rather than seeking unnecessary and disproportionate limitations on it. Restrictions must not be discriminatory, impair the essence of the right, or be aimed at discouraging participation in assemblies or causing a chilling effect.

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38. […] Blanket restrictions on peaceful assemblies are presumptively disproportionate

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40. Article 21 provides that any restrictions must be “necessary in a democratic society”. Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient. Such restrictions must be appropriate responses to a pressing social need, relating to one of the permissible grounds listed in article 21. They must also be the least intrusive among the measures that might serve the relevant protective function. Moreover, they must be proportionate, which requires a value assessment, weighing the nature and detrimental impact of the interference on the exercise of the right against the resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible.

41. The last part of the second sentence of article 21 sets out the legitimate grounds on which the right of peaceful assembly may be restricted. This is an exhaustive list, consisting of the following grounds: the interests of national security; public safety; public order (ordre public); the protection of public health or morals; or the protection of the rights and freedoms of others.

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(8.4) New Technologies and the Right to Assembly

(8.4.1) Potential of and challenges by new technologies

Report of the United Nations High Commissioner for Human Rights, Impact of new technologies on the promotion and protection of human rights in the context of assemblies, including peaceful protests, 24 June 2020, UN Doc A/HRC/44/24

7. New technologies, in particular ICT, have a positive, transformative potential. These technologies enable people to exercise the right of peaceful assembly and related rights through their use: in mobilizing for and organizing peaceful protests; in forming networks and coalitions; and in becoming better informed about assemblies and the reasons behind them, thus driving social change. New technologies may also be useful in increasing transparency and accountability for violations and abuses that may occur during protests.

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17. Interference with access to and the availability and use of new technologies in the context of peaceful protests poses multiple human rights challenges. Such interference includes the filtering of content related to protests, the blocking of websites or certain platforms used to mobilize protesters, the closure of accounts belonging to activists or organizers, or the shutdown of the Internet and communications networks

 

(8.4.2) Technology-enabled surveillance and facial recognition

Technology-enabled surveillance has serious ramifications on the effective exercise of the right to peaceful assembly. The discussion also brings to surface aspects of the interdependence of the effective exercise of different rights (e.g., freedom of expression and freedom of assembly, right to privacy and freedom of assembly). For a more detailed account of issues concerning biometric/facial recognition see (3.5).

(8.4.2.1) Report of the United Nations High Commissioner for Human Rights, Impact of new technologies on the promotion and protection of human rights in the context of assemblies, including peaceful protests, 24 June 2020, UN Doc A/HRC/44/24

24. […] Technology-enabled surveillance poses significant risks to the enjoyment of human rights in peaceful assemblies and is an important contributor to the shrinking of civic space in many countries. […]

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26. The Special Rapporteur on the rights to freedom of peaceful assembly and of association has called for the prohibition of indiscriminate and untargeted surveillance of those exercising their right of peaceful assembly, in both physical and digital spaces. He underscored that surveillance of protesters should only be conducted on a targeted basis, and only when there is reasonable suspicion that they are engaging in or planning to engage in serious criminal offences, based on principles of necessity and proportionality and with judicial supervision. […]

33. The use of facial recognition technology to identify persons in the context of assemblies has considerable adverse effects on the rights to privacy, freedom of expression and peaceful assembly, if effective safeguards are not in place. A person’s image constitutes one of the key attributes of her or his personality as it reveals unique characteristics distinguishing her or him from other persons. Recording, analysing and retaining someone’s facial images without her or his consent constitute interferences with a person’s right to privacy. By deploying facial recognition technology at assemblies, these interferences occur on a mass and indiscriminate scale, as this requires the collection and processing of facial images of all persons captured by the camera equipped with or connected to a facial recognition technology system.

(8.4.2.2) UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), 17 September 2020, UN Doc CCPR/C/GC/37

61. While the collection of relevant information and data by authorities may under certain circumstances assist the facilitation of assemblies, it must not result in suppressing rights or creating a chilling effect. Any information gathering, whether by public or private entities, including through surveillance or the interception of communications, and the way in which data are collected, shared, retained and accessed, must strictly conform to applicable international standards, including on the right to privacy, and may never be aimed at intimidating or harassing participants or would-be participants in assemblies. Such practices should be regulated by appropriate and publicly accessible domestic legal frameworks that are compatible with international standards and subject to scrutiny by the courts.

(8.4.2.3) Facial recognition technology and the interrelation of the right to assembly with the right to privacy

UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), 17 September 2020, UN Doc CCPR/C/GC/37

62. The mere fact that a particular assembly takes place in public does not mean that participants’ privacy cannot be violated. The right to privacy may be infringed, for example, by facial recognition and other technologies that can identify individual participants in a crowd. The same applies to the monitoring of social media to glean information about participation in peaceful assemblies. Independent and transparent scrutiny and oversight must be exercised over the decision to collect the personal information and data of those engaged in peaceful assemblies and over its sharing or retention, with a view to ensuring the compatibility of such actions with the Covenant.

(8.4.2.3) Facial recognition technology and the interrelation of the right to assembly with the right to freedom of expression

ECtHR, Glukhin v. Russia, App no 11519/20, 4 July 2023

88. […] The Court […] considers that the use of highly intrusive facial recognition technology to identify and arrest participants in peaceful protest actions could have a chilling effect in relation to the rights to freedom of expression and assembly.

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90. […] the use of highly intrusive facial recognition technology in the context of the applicant’s exercising his Convention right to freedom of expression is incompatible with the ideals and values of a democratic society governed by the rule of law, which the Convention was designed to maintain and promote.

(8.4.3) What is the chilling effect?

UK Parliament, Justice and Home Affairs Committee, Inquiry on new technologies and the application of the law, written evidence, submitted by Dr Joe Purshouse et al

10. [Facial Recognition Technology (FRT)] may have a ‘chilling effect’ on public assemblies, freedom of expression, and the general use of public space by certain communities and demographics. Overt surveillance can damage legitimate political mobilisations in public space by undermining the perceived legitimacy of protest groups and limiting their access to resources. Furthermore, the perception of being controlled in the public space breaks down the trust in police and other state institutions. In the United Kingdom, football fans have responded to the use of live FRT at a number of matches by wearing face coverings or holding up signage to protest its use. When South Wales Police used live facial recognition at a football match between Cardiff City and Swansea City in January 2020, this prompted condemnation from football supporters’ groups and civil liberties campaigners who argued that its use on football fans was unduly stigmatising.

(8.4.3.1) Accounting for, and incorporating, the chilling effect in data protection impact assessments?

Information Commissioner’s Opinion, The use of live facial recognition technology in public places, 18 June 2021

Identifying and assessing the risks and potential impacts of [Live Recognition Technology (LRT)] is a highly context-specific process. The controller should pay close attention to the specific circumstances of their processing. The focus is on the potential for the deployment of LFR to cause any type of direct or indirect impact, and material or non-material damage.

Where LFR is used for the automatic collection of biometric data in public places, controllers should consider at least any potential:

• inability to exercise any legal rights;
• inability to exercise any specific data protection rights, including the right to be informed, the right of access and the right to object;
• inability to opt-out of the processing;
• loss of control over the use of personal data;
• inability to access services or opportunities; and
• direct or indirect impact on individuals’ ability to exercise their rights and freedoms in this public setting, such as freedom of expression, assembly and association, including any potential inhibiting effect.