13
September
2023

Fundamental rights of older people: ensuring access to public services in digital societies

Europe’s ageing population is ever-increasing, and our societies are becoming more digitalised. Many public services are now available online, with many more services in the process of being digitalised. But the digitalisation of public services poses a risk of exclusion for older persons. In this new report, FRA explores the impact of digitalisation on the fundamental rights of older persons. The report maps the current legislation, policies and practices fostering digital inclusion. It provides an overview of the laws at the national level that provide for equal access to public services, both online and offline. The findings show how Member States safeguard older person’s rights to access services undergoing digitalisation. It outlines how Member States can support digital skills and ensure older people can fully participate in public life.

The following chapter provides an overview of selected laws and policies that aim to ensure equal access to public services that are undergoing digitalisation, at the levels of the EU, the Council of Europe and the UN.

At EU level, the Charter binds EU institutions, and EU Member States implementing EU law. It does not “distinguish or limit the enjoyment of rights on the basis of age”. [53] FRA (2018), Shifting perceptions: Towards a rights‐based approach to ageing, Luxembourg, Publications Office, p. 16.
All civil, political and socio-economic rights that it enshrines are universally valid fundamental rights, which are owed to everyone, regardless of age. The horizontal clause on non-discrimination in the Treaty on the Functioning of the European Union (Article 10) establishes non-discrimination as one of the fundamental principles of EU law, which the EU and national legislation and policy frameworks must observe. [54] European Union (2016), Consolidated version of the Treaty on the Functioning of the European Union, OJ 2016 C 202, Art. 10.

Article 25 of the Charter recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. In addition, the Charter prohibits discrimination on the ground of age (Article 21). More generally, the Charter also recognises other rights that are particularly relevant to older persons, namely the right to social security and assistance (Article 34), the rights of access to healthcare and to services of general economic interest (Articles 35 and 36), the right to vote (Article 39), the right to good administration (Article 41) and the right of access to documents (Article 42).

In terms of secondary EU legislation, the 2000 Employment Equality Directive introduced the criterion of age as a prohibited ground for discrimination in employment and occupation. [55]Council Directive 2000/78/EC of 27 November 2000 on establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303.
Although the directive is primarily work-related, it has helped increase awareness of the rights of older persons in the EU. [56] FRA (2018), Shifting perceptions: Towards a rights‐based approach to ageing, Luxembourg, Publications Office.
Other areas relevant to older persons, including social protection, healthcare, and access to goods and services, are not yet covered by EU legislation on non-discrimination based on the categories of age and disability. [57]Ibid.

To date, little progress has been made on the proposal for a directive that would extend the principles of non-discrimination horizontally, [58] European Commission (2008), Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM (2008) 426 final, Brussels, 2 July 2008.
that is, one that all legislative and policy documents should observe. It would cover various grounds, including age. [59] FRA (2018), Shifting perceptions: Towards a rights‐based approach to ageing, Luxembourg, Publications Office.

Aiming to ensure that all people enjoy the advantages of digitalisation, the Council of the European Union adopted conclusions on human rights, participation and well-being of older persons in the era of digitalisation in 2020. [60] Council of the European Union, Council conclusions on human rights, participation and well-being of older persons in the era of digitalisation, Brussels, 9 October 2020.
This measure emphasises that policymakers should take into account the diverse living conditions of older persons depending on various circumstances and factors. These should also be acknowledged when developing effective policies that directly or indirectly affect older persons. [61]Ibid.
There are presently no EU directives or regulations dedicated to protecting the fundamental rights of older persons.

 

Legal framework - Council of the European Union conclusions affirm rights-based perspective on ageing

In 2020, the Council of the European Union adopted conclusions on the protection of human rights, participation and well-being of older persons in the era of digitalisation[62] Council of the European Union, Council conclusions on human rights, participation and well-being of older persons in the era of digitalisation, Brussels, 9 October 2020.
It stressed that digitalisation entails opportunities and challenges for all groups of society, including older persons.

The Council affirmed that the digital divide between generations is significant and increases with age. It invited Member States and the Commission to adopt “an age-integrated approach including a rights-based and a life-cycle perspective to ageing, bearing in mind the differences between women and men, through, for instance, the promotion of positive communication on and images of ageing, a focus on the opportunities and challenges of ageing, as well as an acknowledgement of the wide range of differences between older persons and a greater understanding of the contribution that older persons make to social cohesion and economy” (para. 23). The Council further observed that an increasingly digitalised world makes digital literacy more important (para. 8). Digitalisation can exacerbate inequalities and/or exclude certain groups who have no or limited access to digital technology (ibid.).

In this regard, the Council has invited Member States and the European Commission to act in their respective areas of competence and with due regard for the principle of subsidiarity. It invited them to mainstream ageing in all policy fields, to help societies and economies to adapt appropriately to demographic change with a view to developing societies that accommodate the needs and interests of persons of all ages (para. 28). It also invited them to actively involve older persons, in particular older women, in all decision-making processes affecting their lives, and to balance the benefits and risks of these decisions in each individual case, with full respect for the rights and participation of older persons, taking into consideration an appropriate balance and solidarity between generations (ibid.).

Although EU law forbids it, age-related discrimination occurs frequently. It stigmatises older persons and intersects with other discrimination grounds. Addressing that fact, the Council adopted the conclusions on mainstreaming ageing in public policies[63] Council of the European Union, Council conclusions on mainstreaming ageing in public policies, Brussels, 12 March 2021.

The conclusions invite Member States, in accordance with their competences and taking account of national circumstances, while respecting the roles and autonomy of social partners, to draw up national strategic documents for mainstreaming ageing (para. 26). It should present guidelines and recommendations on how to maximise the benefits, to deal with the potential risks and to address the main challenges of the increasing longevity of the population. Of particular relevance to the issue of older persons’ access to public services and enjoyment of fundamental rights, the Council invites Member States to continue to close “the gaps in the protection of the rights of older persons, where applicable, and to combat ageism and discrimination on the basis of age beyond employment, notably in the areas of education and training, access to goods and services and social protection” (para. 34).

These Council conclusions also invite Member States and the European Commission, within their respective areas of competence and with due regard to the principle of subsidiarity, while respecting the role and autonomy of the social partners, to “adopt an age-integrated approach including a rights-based and a life-cycle perspective [...] taking into account the dual approach of mainstreaming ageing: the ageing of the population with the responsibility for society to prepare and adapt to the individual needs of citizens, throughout their lives; continuing encouraging and enabling active, healthy ageing” (para. 44). The Council invites them to “Jointly work towards implementing the principles of the European Pillar of Social Rights for people of all ages, in particular those related to the right to access quality health and long-term care services, old-age income and pensions, gender equality, inclusion of persons with disabilities and equal opportunities” (para. 46).

 

The EU had previously adopted only two legal instruments targeting access (but not necessarily equal access) of services that are undergoing digitalisation: the Web Accessibility Directive [64]Directive (EU) 2016/2102/EC of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies, OJ 2016 L 327.
and the European Accessibility Act[65]Directive (EU) 2019/882/EC of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services, OJ 2019 L 151.

The Web Accessibility Directive obliges Member States to ensure that the websites and mobile apps of public sector bodies put in place specific technical accessibility standards, which are accessible to everybody, including persons with disabilities. Member States were required to transpose the directive by September 2018, to establish national monitoring mechanisms to track compliance, and to submit a report to the Commission every three years.

The European Accessibility Act improves cross-border trade between Member States of the EU in accessible products and services. This includes everyday digital products and services, such as computers, check-in machines, smartphones or banking services.

These two strategic directives set out concrete obligations. The Member States are obliged to implement them in national legislation. They must also comply with other international legal standards in this area adopted by the UN.

The EU legal framework, in the treaties, the Charter and the non-discrimination principle, underlines a rights-based approach. With the adoption of the Council conclusions on human rights, participation and well-being of older persons in the era of digitalisation in 2020, the strategic legal framework for addressing ageing and ongoing digitalisation was put into effect. It stresses both opportunities and risks for older persons.

At the level of the Council of Europe, the European Convention on Human Rights [66] Council of Europe, Convention for the protection of human rights and fundamental freedoms, CETS No. 005, 1950.
protects civil and political rights. Article 14 of the Convention reflects the general prohibition of discrimination; it prohibits discrimination based on sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Age and age discrimination are not addressed explicitly, in either Article 14 of the Convention or Protocol No. 12 to the Convention, which covers anti-discrimination. [67] Council of Europe, Protocol No. 12 to the Convention for the protection of human rights and fundamental freedoms, CETS No. 177, 2000.
However, the European Court of Human Rights (ECtHR) has recognised that “age might constitute ‘other status’ for the purposes of Article 14 of the Convention” and has interpreted the Convention as proscribing discrimination on grounds of age. [68] ECtHR, Carvalho Pinto de Sousa Morais v. Portugal, No. 17484/15, 25 July 2017; see also ECtHR, Schwizgebel v. Switzerland, No. 25762/07, 10 June 2010.

The European Social Charter [69] Council of Europe, European Social Charter (revised), CETS No. 163, 1996.
and its Additional Protocol of 1988, [70] Council of Europe, Additional protocol to the European Social Charter, CETS No. 128, 1988.
which entered into force in 1992, were the first legally binding international instrument to make explicit provision for the social rights of older persons. Article 23 of the charter sets forth the right of older persons to social protection, requiring States Parties to adopt measures enabling older persons to participate in social life and “lead independent lives in their familiar surroundings”. It also includes the rights to work in Article 1, to social security in Article 12, to social and medical assistance in Article 13, and to protection against poverty and social exclusion in Article 30, to equal treatment in Article 20 and 27, and to social, legal and economic protection for families in Article 16, although these articles do not explicitly prohibit discrimination based on age. [71] Quinn, G. and Doron, I. I. (2021), Against ageism and towards active social citizenship for older persons: The current use and future potential of the European Social Charter, Strasbourg, Council of Europe.

The European Social Charter guarantees non-discrimination in Article E. It includes specific protection for the rights of potentially more vulnerable population groups, based on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status. [72] Council of Europe, European Social Charter (revised), CETS No. 163, 1996.
Age, however, is not enumerated as one of the protected grounds in Article E. [73]Ibid.

At international level, older persons’ rights are protected under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966).

Acknowledging the potential intersection between older age and disability, the UN Convention on the Rights of Persons with Disabilities [74] UN, Convention on the Rights of Persons with Disabilities, 13 December 2006.
is an additional relevant legal instrument protecting older persons’ rights. All EU Member States and the EU itself are parties to it. The Convention promotes self-determination, autonomy and individual control over one’s life, reaffirming the right of persons with disabilities to access all aspects of society on an equal basis with others. [75]Ibid.
Article 9 specifically refers to accessibility matters, calling for the identification and elimination of obstacles and barriers to information and communication (reiterated in Article 21), including information and communication technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. [76]Ibid., Art. 9.

Furthermore, UN Human Rights Council resolution 24/20 (renewed through resolution 42/12) established the mandate of an Independent Expert on the enjoyment of all human rights by older persons. [77] OHCHR (n.d), Independent Expert on the enjoyment of all human rights by older persons.
This mandate is not only to assess the implementation of national, regional and international standards relevant to the rights of older persons but also to highlight and promote best practices regarding the protection of these rights. The independent expert reports on developments, challenges and protection gaps and provides an annual report to the Human Rights Council and to the General Assembly. [78] UN (n.d.), ‘Independent Expert on the enjoyment of all human rights by older persons.

The UN’s Open-Ended Working Group on Ageing, established in 2010, [79] UN, Department of Economic and Social Affairs (n.d.), Open-Ended Working Group on Ageing for the purpose of strengthening the protection of the human rights of older persons;
has further advanced the promotion of a rights-based approach towards ageing.

This section surveys the applicable policy framework relating to the rights of older persons emanating from the EU, the Council of Europe and the UN.

Rights of older persons according to the EU, Council of Europe and the UN

“Technology should be used to unite, and not divide, people. The digital transformation should contribute to a fair and inclusive society and economy in the EU.”

Source: European Declaration on Digital Rights and Principles for the Digital Decade, adopted 15 December 2022, Chapter II.

 

In addition to legal instruments, various EU and UN policies aim to ensure that older persons’ rights are respected, to foster active and healthy ageing, to advance digitalisation and to promote equal access to public services.

In 2021, the European Commission launched the Green Paper on Ageing[80] European Commission (2021), Green Paper on ageing: Fostering solidarity and responsibility between generations, COM (2021) 50 final, Brussels, 27 January 2021.
Aiming to initiate a broad policy debate on the challenges and opportunities of Europe’s ageing society.

The Green Paper promotes the strengthening of intergenerational solidarity while ensuring sustainable solutions for welfare systems across the EU. It promotes new approaches and ensuring that European policies are fit for purpose in an era of major change, respecting the green and digital transitions. It has further highlighted inequalities in access to digital services among rural communities, where older persons are overrepresented.

The European Commission presented its vision for a digitally transformed Europe by 2030 in its communication of 9 March 2021, 2030 Digital Compass: The European way for the Digital Decade[81] European Commission (2021), 2030 digital compass: The European way for the digital decade, COM (2021) 118 final, Brussels, 9 March 2021.
It proposed a European Digital Decade policy programme, [82] European Commission (2023), ‘Digital Decade policy programme 2030’, 5 January 2023.
which presents the objectives, the targets to be reached by 2030 and the annual monitoring mechanism for measuring progress. [83]  European Commission (n.d.), ‘Europe’s Digital Decade: Digital Targets for 2030’.

The goals of the Digital Decade are set out in the Digital Compass, which includes (1) a digitally skilled population and highly skilled digital professionals; (2) secure and sustainable digital infrastructures; (3) digital transformation of businesses; and (4) digitalisation of public services. More concretely, by 2030 at least 80 % of people aged 16 to 74 should have at least basic digital skills, and 100 % of key public services and 100 % of their medical records accessible online (see Section 1.2 Digital societies). Key public services are essential services provided by public entities to natural persons in their major life events and to legal persons in their professional life cycles. [84]Decision (EU) 2022/2481 of the European Parliament and of the Council of 14 December 2022 establishing the Digital Decade policy programme 2030, OJ 2022 L 323.

Various monitoring and cooperation mechanisms have been set up to measure progress of the Digital Decade. These include an annual report on the state of the Digital Decade, a monitoring system based on data from the DESI, multiannual strategic roadmaps in which Member States present their progress, a framework for discussing insufficient progress and an instrument to promote multi-country projects. [85] European Commission (n.d.), ‘Europe’s Digital Decade: Digital targets for 2030’.
The DESI, however, provides information only on people aged 16 to 74.

Information on how to address digital inequalities is sparse in current documents. No concrete description exists of how older persons’ rights and the rights of other vulnerable groups are to be protected and safeguarded to ensure equal access to public services that are undergoing digitalisation.

To ensure that EU rights and values are fully reflected in the online space as they are in the real world, the Commission proposed the Declaration in January 2022. [86] European Commission, European declaration on digital rights and principles for the Digital Decade, COM (2022) 28 final, Brussels, 26 January 2022.
The Commission, the European Parliament and the Council adopted it in December 2022 as a joint declaration. [87] European Commission (n.d.), ‘European digital rights and principles.

The initial ambition of the Digital Decade was to ensure “access to high quality connectivity, to sufficient digital skills, to public services, to fair and non-discriminatory online services – and more generally, to ensure that the same rights that apply offline can be fully exercised online”. [88] European Commission (2021), ‘Europe’s Digital Decade: Commission sets the course towards a digitally empowered Europe by 2030’, press release, 9 March 2021.
The adopted version underlined that “The European digital rights and principles will complement existing rights, such as data protection, ePrivacy, and the Charter of Fundamental Rights. They will build on the experience of the European Pillar of Social Rights. And, they will provide guidance for the EU and Member States as they adapt to the digital transformation.” [89] European Commission (n.d.), ‘European digital rights and principles’.
Although these rights and principles are enshrined in a proclamation and are not legally binding, they form a crucial basis to ensure equal access to public services in the digital era.

These rights and principles are in line with the Council conclusions on human rights, participation and well-being of older persons in the era of digitalisation as adopted in 2020 (see Section 2.1 Legal framework). They stress the need to maintain non-digital services, while generally furthering the process of digitalising public services. [90] Council of the European Union (2020), Council conclusions on human rights, participation and well-being of older persons in the era of digitalisation, Brussels, 9 October 2020.

The above policy documents and initiatives are consistent with the social rights framework established in the European Pillar of Social Rights. [91] European Commission (n.d.), ‘European Pillar of Social Rights – Building a fairer and more inclusive European Union.
That is a broader instrument reflecting the common aspiration to move towards a more ‘social Europe’. Strategic documents and initiatives follow it, setting out concrete targets related to digitalisation.

The pillar focuses on the EU’s commitment and ambition to put people first and not to leave anyone behind. It sets out 20 key principles, in three categories, reflecting the need to provide equal opportunities and access to the labour market, fair working conditions, and social protection and inclusion. Some principles reaffirm rights already present in the Union acquis. Others set clear objectives for the path ahead as we address the challenges arising from societal, technological and economic developments.

In relation to ageing and digitalisation, principle 20 is of specific importance. It recognises the right of everyone to access essential services of good quality, including digital communications, and provides for support to access to such services for those who face barriers.

Another important instrument is the European Skills Agenda[92] European Commission (n.d.), ‘European Skills Agenda.
It addresses the digital skills and literacy of older persons and sets out an objective that 70% of 16- to 74-year-olds should have at least basic digital skills by 2025. The document does not specify how the digital skills of persons aged 75 or more will be enhanced, although the European Commission’s report on the impact of demographic change [93] European Commission (2023), The impact of demographic change in a changing environment, Luxembourg, Publications Office.
draws attention to the increasing proportion of older persons in the next few decades (see Section 1.1 Ageing societies: the demographic change and its consequences).

The Council of Europe policy landscape is more limited than that of the European Union. This may be because the European Social Charter (revised) does not prohibit discrimination on the ground of age, and because the Convention emphasises civil and political rights.

In 2014, the Council of Europe’s Committee of Ministers issued a recommendation on the promotion of human rights of older persons. It aimed to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all older persons”, clearly defining the entry points from the perspective of equality/non-discrimination and participation. [94] Council of Europe, Committee of Ministers (2014), Recommendation CM/Rec(2014)2 of the Committee of Ministers to member States on the promotion of human rights of older persons, 19 February 2014.
Other than that, the Council of Europe’s soft law recommendations focus on addressing older persons in situations of vulnerability (for example “organisation of palliative care”) or the aggravating disadvantages stemming from intersecting grounds (for example focusing on older migrants or older persons with disabilities). [95] See Council of Europe, Committee of Ministers (1999), Recommendation No. R(99)4 of the Committee of Ministers to member States on principles concerning the legal protection of incapable adults, 23 February 1999; Council of Europe, Committee of Ministers (2003), Recommendation(2003)24 of the Committee of Ministers to member States on the organisation of palliative care, 12 November 2003; Council of Europe, Committee of Ministers (2009), Recommendation CM/Rec(2009)6 of the Committee of Ministers to member States on ageing and disability in the 21st century: Sustainable frameworks to enable greater quality of life in an inclusive society, 8 July 2009; and Council of Europe, Committee of Ministers (2011), Recommendation CM/Rec(2011)5 of the Committee of Ministers to member States on reducing the risk of vulnerability of elderly migrants and improving their welfare, 25 May 2011.

UN policies on ageing take as their starting point Article 21 of the Universal Declaration of Human Rights. It proclaims that “Everyone has the right of equal access to public service in his country.” [96] UN, Universal Declaration of Human Rights, 10 December 1948.

The Regional Implementation Strategy of the Madrid International Plan of Action on Ageing provides guidance on how to advance older persons’ access to new technologies and services. [97] UN (2002), Report of the Second World Assembly on Ageing: Madrid, 8–12 April 2002, New York.
So do goals 17, 18 and 28 of the 2017 Lisbon Ministerial Declaration[98] UN, United Nations Economic Commission for Europe (2017), 2017 Lisbon ministerial declaration – ‘A sustainable society for all ages: Realizing the potential of living longer, 4th UNECE Ministerial Conference on Ageing, Lisbon, 20–22 September 2017.

Furthermore, in 2020, the Secretary-General of the UN announced a Roadmap for Digital Cooperation[99] UN (2020), Report of the Secretary-General: Roadmap for digital cooperation, New York.
It describes eight major areas for action:

  1. achieving universal connectivity by 2030;
  2. promoting digital public goods to create a more equitable world;
  3. ensuring digital inclusion for all, including the most vulnerable;
  4. strengthening digital capacity building;
  5. ensuring the protection of human rights in the digital era;
  6. supporting global cooperation on artificial intelligence;
  7. promoting trust and security in the digital environment; and
  8. building a more effective architecture for digital cooperation.

The roadmap focusses on safety and equality in the digital world.