By Joe McNamee

This article is also available in Dutch: https://www.bof.nl/2016/07/11/mobilisatie-voor-digitale-rechten/

In a digital society, digital rights are simply our rights. They are our right to express ourselves freely, our right to a private life, our right to our possessions. But what if digital society fails to realise that our traditional rights and freedoms cannot always be defended by traditional thinking or traditional legal instruments?

What if the entire framework for the regulation of the digital aspects of our societies is being built in a vacuum where politically expedient and populist policies are being put in place before society realises what is happening? Then our digital society will not have rights, because our rights nowadays have both an offline and an online dimension. Our society’s hard-fought democratic rights will have been repealed without discussion.

This is the challenge of digital rights advocacy in 2016.

Public rights

When our leaders sat down after the horrors visited on Europe’s population to write the European Convention on Human Rights, they did not ask what could be done to stop ideas spreading. They anchored, with global impact, privacy rights and freedom of expression in meaningful and enforceable international law. They recognised that limitations can be necessary, but that these limitations must be predictable and, in the community of democratic states united in the Council of Europe, must be provided for by law. Democracy and diversity – not censorship and suppression. This was reinforced by subsequent European Court of Human Rights case law (Handyside v. UK, case 5493/72, for example), which found that the right to freedom of expression included the right to “offend, shock or disturb”.

Private ordering

Europe’s democracies have grown and deepened in this framework for over half a century, protected by the extraordinary vision of its post-war leaders.

One of the key protections in Europe’s human rights framework, in both the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (as well as other international instruments) is that restrictions must be provided for by law, as well as being both necessary and proportionate.

Two facts collide in relation to protecting these rights in the digital environment. Firstly, international human rights law (like constitutions) is binding on states and not on private actors. Secondly, the infrastructure and services of the digital age (the public space of a digital society) are privately owned and are provided across multiple jurisdictions.

As a result, however, it becomes vastly easier for governments to decide not to regulate, but seek to achieve public policy goals (or to be seen to be “doing something”) by putting pressure on internet companies to impose restrictions, free from the legal constraints of international law or national constitutions.

The number of examples of restrictions on freedom of expression imposed as a result of government pressure is growing exponentially. Our freedom of expression is leaking through this gap between what governments can informally demand and what companies will accept. The same applies to other digital rights.

Practical implications

Even in the United States, where the First Amendment right to free speech has achieved an impressive level of awareness and support in society, this loophole can be abused with impunity. Indeed, companies have been granted their own free speech rights under the First Amendment.

As a result, the US government could successfully exert pressure on Amazon Web Services to delete Wikileaks’ account, while Wikileaks had no free speech right to stop this from happening. As the measure taken by Amazon was, strictly speaking, voluntary, the consensus appears to be that the government did not act unconstitutionally.

Similarly, in Europe, there is no clarity, rather an apparent political will to avoid any clarity, with regard to the extent to which governments can coerce companies into imposing arbitrary restrictions on fundamental rights and freedoms. Intermediary liability, imposed through the various interpretations of the EU’s E-Commerce Directive, leads to perfectly legal content being removed while US internet giants generally “voluntarily” implement US copyright law in the EU through their nebulous terms of service. Unsurprisingly, this too, leads to arbitrary restrictions on freedom of expression.

In the midst of numerous parallel processes to adopt legislation on privacy, data protection, copyright, terrorism, net neutrality, internet blocking, child protection and so on, the unanswered question of the interaction of law and a privately ordered public space remains to be exploited.

Grassroots campaigns

Governments have, quite dishonestly, tried to build various mechanisms in order to improve their leverage to force companies to implement measures that would be illegal, if implemented by law. The 1998 US Digital Millenium Copyright Act (DMCA) gives internet companies protection from liability if a complainant fulfils an unchallenging list of criteria. The 2000 EU E-Commerce Directive allows intermediaries to avoid liability for illegal content if they “expeditiously” take action upon gaining un-defined “actual knowledge” of the content in question. The result of both instruments was the deletion of significant amounts of legal content.

More recently, in the USA, the ill-fated proposed Stop Online Piracy Act (SOPA) sought to give a whole range of internet companies freedom of liability for punitive actions taken against their customers, if they had a “good faith” belief they were providing services “dedicated to the theft of US property”. A huge grassroots campaign successfully prevented SOPA from becoming law.

Similarly, in the EU and elsewhere, a huge grassroots campaign against Anti-Counterfeiting Trade Agreement (ACTA) led to the abandonment of that proposal. ACTA included a rather vague provision creating an obligation on parties to “promote cooperative efforts within the business community” to enforce trademarks and copyright.

Advocacy in Brussels or Washington alone would not have defeated SOPA or ACTA. Grassroots campaigning showed politicians the level of citizens’ concerns. It served not just to defeat those proposals, but also served as a caution against implementing similar “big bang” legislation in the future.

Grassroots campaigns – all campaigns – also suffer when measures, such as the EU’s “passenger name records” (PNR) and “terrorism” Directives, are adopted in the full knowledge that they are not backed up by evidence, but are implemented as a political statement or simply a knee-jerk reaction, in response to a major event. In such circumstances, we can only hope that the courts will (as happened with the EU’s data retention Directive) catch up sooner rather than later and overturn the legislation.

Political advocacy on EU and national levels

The challenge for grassroots campaigns, as hugely valuable as they are, is that they can focus on big targets, one at a time. Both before and since ACTA was rejected, we have been faced with various “voluntary” enforcement projects (on copyright, hate speech, terrorism, etc.) organised by the European Commission, at the same time as an avalanche of fundamental rights-relevant legislation is consulted on and proposed (on audiovisual media services, liability, copyright reform, copyright enforcement, terrorism and child protection, for example).

At the same time, the EU has learned from the mistakes of ACTA. In its Communication on Platforms, launched in May 2016, instead of a big bang, it proposes “voluntary” restrictions in the context of hate speech, terrorism, child protection and copyright enforcement as separate elements, with the thinly veiled threat of legislation if online companies do not “voluntarily” police these activities – and the promise of liability protections for any mistakes they might make. Not a “big bang” like ACTA that can consolidate opposition, but numerous threats and promises, making the “enemy” more nebulous, so offering no “decision moment” that can be the focus of a campaign.

These challenges require long-term advocacy, from the start to the end of the legislative process – there are too many proposals that are too complex for grassroots campaigning. Decision-making has been adapted to avoid decision-moments around which campaigns can be organised. Of course, individual grassroots campaigns are still hugely valuable – to show the size of the community that cares and to take action on appropriate topics – like net neutrality.

For the rest, however, we need long-term, professional and trusted advocates in Brussels and in national capitals to fill the gaps in political knowledge, to ensure representation of citizens’ rights in public meetings and expert consultations.

Unfortunately, Europe’s digital rights community is a fraction of the size of that of the United States and, more importantly, a fraction of the size it needs to be to deal with the upcoming challenges.

................................................................. Support our work - make a recurrent donation! https://edri.org/supporters/ .................................................................

This article was originally published in openDemocracy.net: https://www.opendemocracy.net/joe-mcnamee/mobilisation-for-digital-rights

The European Convention on Human Rights
http://www.echr.coe.int/Documents/Convention_ENG.pdf

The Charter of Fundamental Rights of the European Union
http://www.europarl.europa.eu/charter/pdf/text_en.pdf

EDRi paper: Human Rights and privatised law enforcement
https://edri.org/wp-content/uploads/2014/02/EDRi_HumanRights_and_PrivLaw_web.pdf

EDRi paper: The slide from “self-regulation” to corporate censorship
https://edri.org/wp-content/uploads/2010/01/selfregualation_paper_20110925_web.pdf

Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe (25.05.2016)
https://ec.europa.eu/digital-single-market/en/news/communication-online-platforms-and-digital-single-market-opportunities-and-challenges-europe

EDRi-gram_subscribe_banner

Twitter_tweet_and_follow_banner