Patrick: Back in 2019, we went through the process of developing a bespoke impact measurement framework for litigation, which has been a key tool in helping to map the impact of litigation that DFF has supported. As an external consultant, it is quite rare to get to work with the same organisation for such a long time, and it has been really exciting to see the framework being used, applied and take shape – we managed to log over 200 specific, evidence supported outcomes that the digital rights community has been able to achieve in relation to law and policy, social impact, and impacts for the digital rights community themselves.

Thomas: Yes, I think ever since DFF was set up in 2017 it was always the goal to look at litigation as a lever for wider change. So it was important to consider not only the results of specific court judgements, but also look at the other positive changes that come along the way.  These can be things like increasing staff expertise to take more cases in the future, building public awareness or achieving policy concessions just through the threat of going to court. It’s been interesting to see how the types of outcomes have changed over the years. Given the length of litigation, it took a few years to really start to see more law and policy changes come in, but there were a lot of community level outcomes straight away, especially around collaboration.

Patrick: Yes, I completely agree! Another exciting change that the report highlights is how the range and type of organisations that DFF has supported has evolved over time.  In DFF’s early years, many of the network’s members were traditional digital rights organisations with a focus on data protection and privacy. It is really interesting to see how DFF’s involvement in the work to set up a programme for decolonising the digital rights field, and the Digital Rights for All programme have helped to bring a much wider range of communities into the network and receive support to address digital harms relating to broader variety of racial, social and economic human rights issues.

Thomas: And not only more broad in terms of the range of digital rights issues, but also increasing the types of groups receiving funding and the diversity of the countries where these groups are based. It is quite stark to see the numbers in the report about how narrow our funding was in the first couple of years, with a huge proportion of funding going to groups in the UK and Germany. While we do continue to fund litigation in those countries, it was really important to proactively change our approach to make sure our “Council of Europe” mandate is achieved in practice. One of the most exciting things for me has been seeing the increase in the number of new organisations applying for and receiving funding. Around 2020, after three years of grantmaking, it looked like we had almost reached a peak, but actually, the number of new groups really shot up since then, and we are still seeing dozens of first-time applicants every time we have a call for applications.

Patrick: For me, perhaps what’s most exciting to read about are the concrete examples of outcomes and impact, like the “SyRI” case where the court ruled that a risk profiling method employed by the Dutch government to detect individual risks of welfare, tax and other types of fraud, is in violation of the European Convention on Human Rights; or the Supreme Court of Spain recognising for the first time that information about abortion on the Internet is constitutionally protected by the right to information.

There are so many examples like this in the report and it has been interesting to see these cases develop over the years, seeing how pre-litigation grants have helped lay the ground-work for cases, or how connections made at different DFF events have led to impactful litigation collaborations.

Thomas: Yes, for sure, it’s great to see when all this effort comes to fruition, sometimes after a long time. For example, last year in a case that took around five years, a Polish court ruled against Facebook and in favour of a civil society group called SIN, whose pages had been unlawfully removed. But sometimes, results can come more quickly as well. Like in 2019, just the threat of judicial review by Foxglove and the Joint Council for the Welfare of Immigrants was enough for the UK Home Office to agree to shelve an algorithm used to stream visa applications. 

One thing we haven’t done so well yet is to really publicise all the amazing outcomes achieved by the more than 70 groups we’ve funded. A major aim of publishing this report is to start doing that better. We are in the privileged position of seeing the details of around 100 different litigation projects all across Europe, so there is more we can do to really highlight and promote all this great work. As well as all the concrete examples, like you mentioned, I really like just being able to see the vast scope of different outcomes that digital rights litigation can achieve, as well as some of the trends that are coming out. And most of the groups we’ve funded in the last two years aren’t even mentioned in this report, so there will be a lot more to show in the coming years.