German petition calls for a fundamental right to ‘a life without digital coercion’

Right to a life without digital coercion

On 23 May 2024, on the 75th anniversary of the German constitution, Digitalcourage launched a petition calling for a new fundamental law: the right to access basic services without being forced to use a digital solution – labelled as ’right to a life without digital coercion’. This was based on previous campaigns by the organisation about changes made by two providers of essential services in Germany: the postal service company Deutsche Post DHL Group and Germany’s largest railway operator, Deutsche Bahn (DB).

No app – no parcel, no e-mail address – no bargain train ticket?

Recently, DHL introduced new, ’lean’ parcel lockers where customers can only collect parcels if they use the company’s “Post & DHL App” on their smartphones. Anyone can find themselves having to use one of these lockers, as parcels may be redirected to a locker in case of an unsuccessful home delivery. In this case, the only way to receive parcels without the app is to request a second delivery to the original address – an option that is time-limited and well-hidden on DHL’s website.

Deutsche Bahn (DB) also made several significant changes to their services recently. Since autumn 2023, DB saver tickets (Sparpreis/Supersparpreis) are no longer sold via ticket machines. When buying these at the ticket office, customers have to submit their mobile phone number or email address. The official reason given by DB for collecting this data is that they need to be able to inform customers about delays. The data protection commissioner in charge of DB criticised the collection of this personal data as unnecessary and called this digitalisation strategy ‘not very respectful’.

Additionally, from mid-2024 the BahnCard discount card has become a digital-only product, while it used to be issued as a physical card. This was met with protests from many customers and civil organisations (see: Bündnis Bahn für alle, BAGSO, vzbv and Digitalcourage). Because of this, DB made a small concession, permitting a substitute PDF document to be printed out when a BahnCard is bought at a ticket office. However, the company has made clear in replies to complaining customers that this is only meant as a temporary solution.

There are many more recent examples of this creeping digitalisation of public and essential services in Germany. In cities,including Berlin, Hamburg and Mainz, bus tickets can no longer be bought from the driver with cash. At some German universities, students’ semester transport tickets are only offered as digital tickets, requiring a designated app.

More dependency on big tech, threat of marginalisation

This ruthless digitalisation in the public transport sector raises a serious threat to participation in public life. Digital-only services and services only accessible with a smartphone will, in many cases, exclude people who particularly depend on public transport, such as those with low incomes, children, elderly people and people with disabilities.

The way digitalisation is mostly implemented these days also includes the collection of more personal data from users. In the case of DB, the required channel for obtaining and using the digital BahnCard is the company’s DB Navigator app. This app uses trackers that cannot be rejected because the company has classified them as ‘necessary’ (Digitalcourage, with partners, filed a lawsuit against this). Further, the DB Navigator app is only available in the app stores of Google and Apple.

Instead of adding new and innovative ways to access a service, we are increasingly seeing access to essential services being restricted to a specific plattform or app that is often linked to Big Tech platforms and services.

Digitalisation is not the problem – data hoarding and denial of choice is

Politicians and businesses like to portray digitalisation as an inevitable trend that must be followed to achieve the full potential of our society.

At a “digital summit” with industry representatives on 21 October 2024, the German minister for transport and digitalisation, Volker Wissing (of the liberal party FDP), acknowledged the Big Brother Award that Digitalcourage had given Deutsche Bahn 10 days earlier – and then went on to state his aim of progressing from a “digital first” strategy to “digital only”. It seemed unclear whether the minister just enjoyed using the award to “his” railway operator for a light-hearted remark, or whether he actually got the message.

Digitalisation can indeed improve access to services and make lives much more flexible. However, what DB, Deutsche Post DHL, and many other service providers are doing is the exact opposite. Their concept of digitalisation apparently is to maximise benefit to the business, and disfavour the customer. It may lead to a point where analog interfaces are taken away completely. Businesses might attempt to justify this move with an isolated analysis of their analog interfaces’ costs and revenues. What they are overlooking is that removing analog interfaces ultimately means leaving out parts of their user base, at a cost both to the business and society.

When digitalising their services, many providers also seek to maximise the data generated and exploit it for objectives beyond the user-friendly operation of the service. The providers regard this data as an asset in itself, which they may use for to achieve more ‘efficient’ business models and to become a player in surveillance capitalism. For users, this can lead to further removal of choices and the loss of their ability to use a service anonymously.

Calling for a new fundamental right

A new fundamental right could reverse this trend and make it easier for people to exercise their rights. Being forced to use a digital channel can discriminate against people and even exclude them from certain services completely. Article 3 of the German constitution protects all persons from various forms of discrimination. Digitalcourage is calling for this article to be extended with a ban on discriminating against people who choose to not use a certain device or digital platform. The German author, journalist and former judge, prosecutor and lawyer Heribert Prantl proposed a wording for this fundamental right: ‘The provision of basic and essential services for a person must not be made dependent on their use of digital services.’

This topic has become a subject of intense debate in German legal literature, as summarised in a paper by the Research Services of the German Bundestag.

In the meantime, some German states have already enacted such a fundamental right. Article 14, paragraph 2 of the constitution of the state of Schleswig-Holstein says: ‘Within the scope of its competences, the state shall ensure personal, written and electronic access to its government agencies and courts. No one may be disadvantaged as a result of the method of access.’

Similar steps are being taken in other countries: The constitution of the Swiss canton of Geneva has guaranteed citizens a ‘right to an offline life’ as of July 2023. In the canton of Zurich, a similar bill is currently being drafted following a citizens’ initiative and is expected to be put before voters in a referendum in the coming years.

New alliances

To address digital coercion in public transport in Germany, a collaboration of organisations active in consumer protection has made some important steps. One of these is a position paper in which more than 20 organisations call for ‘freedom of choice instead of digital coercion in public transport’. The Federation of German Consumer Organisations (vzbv) also commissioned a representative survey which showed that 96% of respondents agree (“fully” or “rather”) that people without internet access or a smartphone must still have access to all public transport services. This paper has been presented to the board of DB.

Digitalcourage’s petition to incorporate a right to a life without digital coercion in the German constitution has been covered many times in the national media. Over 30,000 people have already signed it, and the campaign will run until May 2025 at least. All German residents are invited to support the petition. Digitalcourage will also seek further support in the German parliament and beyond for an amendment to the Constitution.

The issue is also gaining momentum at the EU level. An open letter, coordinated by Belgian-based literacy organisation Lire et Écrire to the European Commission, the Council of the European Union, and the European Parliament was published in spring 2024. It demands that essential services must be accessible, even offline. A broad alliance of organisations not only from the digital rights sector, but also from the social and education sectors is currently forming around this initiative, and is open for additional support.

Contribution by: Julia Witte and Sebastian Lisken, EDRi member, Digitalcourage