DIGITAL RIGHTS: Session V – Future prospects and impact on public policy
The closing discussions highlighted a forward-looking approach to the relationship between technological innovation and the protection of fundamental rights. Particular emphasis was placed on the growing role of digital service providers, who have now become fully-fledged participants in the judicial process under the e-Evidence Regulation.
It was emphasised that artificial intelligence should not be viewed solely as a tool for investigation or data analysis, but also as a potential means of protecting rights. For example, solutions based on artificial intelligence agents could help service providers identify communications that may be covered by legal professional privilege between a lawyer and their client before they are transmitted to the relevant authorities. Such an approach, based on reliable platforms and close cooperation between service providers and the legal professions, could be implemented within the existing legal framework, without requiring any amendment to the regulations.
When asked to comment on the ability of the e-Evidence Regulation to strike a balance between the effectiveness of investigations and respect for the rights of the defence, the speakers adopted a nuanced position. They considered that this balance was achievable but would depend largely on the implementation arrangements adopted by the Member States. The effectiveness of legal remedies, the strength of procedural safeguards and the quality of judicial review will play a decisive role in the protection of fundamental rights, in a context where certain prior safeguards are being scaled back in favour of ex post control mechanisms.
The discussions also highlighted the risk of disparities between Member States. Whilst the new framework may provide an opportunity to strengthen the requirements of proportionality and the safeguards applicable to the collection of electronic evidence, too great a diversity of national approaches could jeopardise the search for a common balance within the European Union.
Finally, the speakers emphasised the need to ensure that the entry into force of the regulation is accompanied by a strengthening of the technical skills of legal practitioners. The parallel development of European instruments relating to electronic evidence, Europol, Eurojust and the European Investigation Order is leading to an increasing complexity of procedures. In this context, cooperation between technical experts and legal professionals appears essential to ensure that the rights of the defence can keep pace with the technological capabilities made available to the investigating authorities.
The session concluded with a shared view: the protection of fundamental rights in the digital environment does not rely solely on legal rules, but also on the ability of institutions, practitioners, and technology providers to work together to develop practical solutions that balance innovation, efficiency, and respect for procedural safeguards.
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