Declaration of Digital Principles: Towards a digital pillar of the EU?
On 26 January the European Commission proposed a Declaration on European Digital Rights and Principles. The Declaration will take the form of a joint solemn declaration to be signed by the European Parliament, the Council, and the Commission.
The Commission clarifies that these principles do not affect the legal rights that already protect people online within the European Union, and for which effective remedies must exist across the Union. Nor do they affect lawful limits on the exercise of such legal rights. They add that the Declaration is a reference framework for people and a guide for businesses and policy makers, with the aim of placing people at the centre of digital transformation.
Are there new digital rights proposed? Or are existing ones restricted?
In essence, the Declaration establishes a compass to ensure that fundamental rights are part of current and future digital policies. In itself, the Declaration does not create or restrict fundamental rights, which are otherwise already clearly established in the legally binding Charter of Fundamental Rights and the jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights.
The Declaration touches on well established principles in EU jurisprudence and legislation. What may be a missing reference (ie: right to use end-to-end encryption) is reflected when the Declaration protects confidentiality of communications. That said, the Declaration contains a number of core principles that EDRi defends such as net neutrality, data minimisation when using public services, ensuring that algorithms and AI are not used to manipulate people, that there cannot be general monitoring obligations and that technology should be privacy-preserving by design and by default and that “no one shall be subjected to unlawful online surveillance or interception measures”.
What does this mean in practice?
Since the Declaration will only establish principles and a way forward in future policies and technologies, the specific protections for people need to be recognised in specific legislation and its enforcement, including the enforcement by judicial and non-judicial authorities (ie: CJEU and data protection authorities in the case of data protection).
The Declaration is split into four chapters: Putting people at the centre of the digital transformation; Solidarity and inclusion, mentioning the need to ensure net neutrality, digital education, fair and safe working conditions and the right to access public services online; Freedom of choice, touching on the need to ensure algorithmic transparency and protection from unlawful profiling and discrimination; Participation in the digital public space (freedom of expression, role of platforms on disinformation); Safety, security and empowerment recognising the rights to privacy and data protection, with a specific dedication to the protection of children; and finally a chapter on Sustainability.
The Declaration can be read in different ways. Some of what it includes is ominous, despite, or maybe because of, being couched in nebulous terms. For example it notes “harmful” content in the context of child protection, as well as the need for “age-appropriateness”. Yet, offline rules apply online too.
Other bits are just missing in action. Acknowledgement of power differentials and the interplay with competition law, or the importance of collective rights and the need of a digital public space, for example. Similarly the question of what role copyright and trade secrets should play, if any, if the Commission truly wants to achieve sustainability, put people in the centre and seriously tackle climate change.
It is unclear whether this Declaration will add another document to the Berlin and Lisbon declarations on digital rights, or whether it will become something similar to a “digital pillar” (in pre-Lisbon Treaty terms) for the European Union. It is also to be seen whether the Declaration will be central to EU policies and used by adversaries to justify opposite goals, or whether it will be altogether ignored and left in the limbo of preambles and recitals of actual legislation. The next step is for the European Parliament (EP) to strengthen and iron out the Declaration into something people can look forward to. If the EP takes leadership we may be moving forward towards a real policy document with concrete effects on people. If not, see you in the preambles, Declaration.
Image credits: Open Future (CC BY 4.0)