Digital rights are human rights

By Nani Jansen Reventlow, 10th December 2017

As the boundaries between our online and offline lives blur, is there really a distinction between “digital” and other human rights?

What do we mean when we talk about “digital rights”? This is a fundamental question that influences DFF’s strategy as we define the parameters for supporting the work of activists and litigators in Europe.

A quick search online yields a variety of definitions, most of which focus on the relationship between human beings, computers, networks and devices. Some of the narrower ones focus on the issue of copyright exclusively.

As our lives are digitalised further, does this approach to defining the term make sense?

In many ways, we already live in the sci-fi future we once imagined. The internet of things is here. Our food is kept cold in what we used to call a fridge, but what is now a computer that also has the ability to freeze things. The main way in which we communicate with our colleagues, family and loved ones are our mobile devices and what happens on social media is alleged to have a significant impact on elections. Our data are being collected by governments and corporations alike. In all of these contexts, our basic human rights – our rights to freedom of expression, freedom of assembly, privacy, and the like – are implicated. If there ever was a dividing line between “digital” rights and human rights, it has blurred to the point of irrelevance.

In line with the reality of our time, at DFF we work with a broad definition of digital rights for our grantmaking and field support activities. We consider digital rights to be human rights as applicable in the digital sphere. That is human rights in both physically constructed spaces, such as infrastructure and devices, and in spaces that are virtually constructed, like our online identities and communities.

If digital rights are human rights, then why use a different term? The label “digital rights” merely serves to pinpoint the sphere in which we are exercising our fundamental rights and freedoms. To draw concrete attention to an issue, using a term that expresses the context can help with framing and highlighting the issue in a compact manner. With our digital rights under threat on many fronts, this is important. Just as it was important, in 1995, for Hillary Clinton to state at the Women’s Congress in Beijing that “human rights are women’s rights, and women’s rights are human rights,” and for President Obama in 2016 to stress that LGBT rights are human rights, we should all be aware that digital rights are human rights, too. And they need to be protected.

As we further engage with the digital rights community in Europe, we look forward to supporting their important human rights work and highlighting their successes in this space. Part of that mission also includes creating broader understanding that digital rights are indeed human rights. We hope you will join us in sharing that message.

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Litigation as an instrument for social change – laying the foundations for DFF’s litigation support

By Nani Jansen Reventlow, 29th November 2017

A closer look at strategic litigation, part 1.

Part 2: Just a lawsuit or a case for a cause: what makes litigation “strategic”?
Part 3: Connecting litigation with other efforts: strategic litigation as a tool in the toolbox

Litigation as an instrument for social change is getting plenty of news coverage these days. Whether it’s challenging Brexit, standing up for press freedom, or tackling climate change, lawyers are part of the forefront of many of the battles currently being fought. Litigation to bring about social change and enforce civil and human rights – strategic litigation – is in high demand.

While historically not labelled as “strategic litigation” – a term often associated with the United States – many European countries have a proud tradition of social lawyering. And, as I mentioned in my previous blog post, there are some good recent examples of impact litigation on digital rights on the continent.

But what makes litigation strategic? And how does it fit in with other instruments for change: advocacy, lobbying, and the political “inside game”? These are questions DFF is diving deep into as we plan how to operationalise its mandate to advance digital rights in Europe by supporting strategic litigation.

There are multiple examples of impressive strategic cases. One was recently fetchingly represented by RadioLab in an episode of More Perfect, a podcast that takes a closer look at seminal US Supreme Court cases. The “Sex Appeal” episode recounts how Ruth Bader Ginsburg, now a justice on the Supreme Court, during her time at the ACLU managed to get that same Court to extend the US Constitution’s 14th Amendment – which grants “equal protection of the laws” to all persons – to women. She carefully selected a case that would be well-received by an all-male panel of judges, cautiously crafted the wording of her legal argument and eventually managed to obtain an enormous victory for women’s rights.

Not all litigation is as neat and well-planned, however. Litigation can be messy, ad hoc, and as a litigator you sometimes have to make the most of a set of imperfect facts, an imperfect court and an imperfect plaintiff. That doesn’t mean that an imperfect or ad hoc case cannot yield positive results for a broader cause. In litigation, one has to be both ready to plan and wait, and be prepared to be opportunistic.

In light of these realities, we are carefully crafting the parameters for what should be considered “strategic” cases when it comes to the litigation activities DFF will support. Should a case have been meticulously planned from the outset or do “accidentally strategic” cases count as well? Does there need to be a reasonable chance of success in court? Can you litigate strategically in administrative procedures?

As we develop our grantmaking criteria, we will be reaching out to the digital rights community to get their input. We want to find a model that balances DFF’s impact-focused strategy with the day to day reality of litigation, and the need for a careful decision-making process with the need to keep the application process light and accessible for the busy litigators that could benefit from DFF’s support.

We will keep you posted of this process via our blog. If you want to weigh in and share your views, please get in touch.

This post is the first of a series on strategic litigation. Next posts:
Just a lawsuit or a case for a cause: what makes litigation “strategic”?
Connecting litigation with other efforts: strategic litigation as a tool in the toolbox

A tale of three cities: practitioners from London, Berlin and Amsterdam share their views on digital rights litigation in Europe

By Nani Jansen Reventlow, 9th November 2017

This summer, we started asking digital rights litigators and activists in Europe what they were working on and how DFF could support it.

What are the most pressing issues in digital rights and which of them can potentially be addressed through litigation? What threats and opportunities should we anticipate in the future when it comes to digital rights and how can we address them? What can DFF do to make good things happen for digital rights in Europe?

The individual conversations we had over the past months showed a committed and passionate field of organisations and individuals who – while differing in approach and emphasis of their work – shared a deep dedication to advancing digital rights in Europe, be it in the area of privacy, copyright, data protection, or other. There also was a clear wish to increase collaboration and information sharing across the field.

Last week, we visited London, Berlin and Amsterdam, where we asked local activists to share their views with us over a beverage. This yielded further insights in how we might all work together, on which issues, and how DFF could facilitate that.

In London, the conversation went deep into the issue of government surveillance and into the GDPR; what might the new EU Directive mean and what could possible strategies for both advocacy and litigation look like?

In Berlin, we discussed what could be considered a “good” or a “bad” court case and how litigation tied in with other efforts such as public campaigning and targeted lobbying. The Amsterdam conversation focused on the different funding models that would be helpful to the community, how to connect litigation with academia, and ways to encourage pro bono support from commercial law firms.

Numerous good ideas were floated and we look forward to further exploring with you what DFF’s priorities should be in the short, median and longer term. We will continue engaging with the digital rights community over the coming months, but please don’t wait for us to ask questions to share your views – get in touch with us.