Best practices for using the EU Charter in digital rights litigation workshop
Our task is to make trouble, to stir up potent response to devastating events, as well as to settle troubled waters and rebuild quiet places. [1]
The first year of our two-year digiRISE project is soon concluding. In this past year, we have explored the EU Charter’s potential to protect digital rights and the means to enforce it, specifically, through strategic litigation. The transversal theme of Digital Rights are Charter Rights materialised in more ways than one.
The EU Charter includes a considerable number of rights, which are perceived by many as applying predominantly in an offline context, but which could arguably also be relied upon in strategic litigation cases that challenge violations of individuals’ digital rights. The divide between offline and online contexts appears more and more non-pertinent. Both lives have become increasingly enmeshed, meaning that the EU Charter as a whole will likely become a central means to ensure legal protection against technological harm.
This is particularly true when one considers the penetration of digital technologies in all aspects of our private and public life, our social and personal relationships, our relationships to the State, to numerous service providers, and to our own selves.
The (oft) galloping algorithmisation of our societies assumes that algorithmic systems are ascribed with the responsibility to form categories and to classify users accordingly. This practice entails the risk that important socio-political decisions become hidden behind opaque, rigid, and deterministic technological private infrastructures. Overall, the importance and truthfulness that we attach to these categorizations makes them particularly impactful.
Cheney – Lippold describes the process of classification itself as:
“a demarcation of power, an organization of knowledge and life that frames the conditions of possibilities of those who are classified”.
This classification operates as a structure for understanding individuals and collectives from the perspective of the classifier. For instance, when a facial recognition program promises to distinguish between different ethnicities and religious groups, the use of this information as a policy-enforcing tool can be particularly impactful in the way that it will include or exclude people and populations.
Most importantly, all these private technological infrastructures are increasingly inescapable. Control over whether one can or cannot have any digital presence is fading. It becomes clear that the entity who controls the technology, controls the decisions embodied in it.
The EU Charter’s role to protect individuals and groups from being subject to injustice, discriminatory treatment and exclusion from opportunity is central to our exploration of the full potential that this instrument can embody. In this direction, DFF’s first digiRISE workshop on the Opportunities and Challenges to Utilising the EU Charter of Fundamental Rights took place in Berlin on 4 May 2023.
During this workshop, we unpacked the use and enforcement of the EU Charter in strategic litigation cases related to digital rights. We focused on key EU Charter rights, such as article 8 (protection of personal data). The discussion, led by Privacy international, took a deep dive into articles 7 and 8 of the EU Charter. Specifically, we explored the versatility of these articles in countering systemic digital rights violations. Using examples from case law, we distinguished the use of the EU Charter from other human rights instruments, notably the European Convention of Human Rights.
Following these learnings, we placed our attention in encouraging discussions between digital rights and racial and social justice organisations. The opportunity to come together and share their successes and lessons learnt from using the EU Charter in strategic litigation cases was particularly impactful. We discussed the long history of non-discrimination cases based on the experience shared by Women’s Link Worldwide, we highlighted the emerging body of case law discussing intersectional discrimination and the limits of existing legal tools to counter discriminatory practices occurring via digital means.
By the end of the workshop, and using the strategic litigation toolkit, we developed our own case studies which presented uses, advantages, and limitations in the potential of the EU Charter to defend digital rights in strategic litigation.
The digiRISE follow-up Workshop on best practices for using the Charter in digital rights litigation will take place on 16 November 2023 in Berlin. This second follow- up workshop is aimed at sharing best practices for enforcing the EU Charter in digital rights litigation. We will unpack different legal avenues in using the EU Charter in digital rights litigation, we will share successes and lessons learnt from utilising the EU Charter in strategic litigation, and we will ensure that the digital rights community are equipped with the tools to utilise the EU Charter in digital rights strategic litigation.
If you would like to know more about digiRISE or if you would like to participate in our upcoming workshop, please contact alexandra@digitalfreedomfund.org
[1]Donna Haraway (2016), Staying with the Trouble. Making Kin in the Chthulucene. Durham, NC: Duke University Press