Advancing digital rights in Europe: building on current efforts in the field

By Nani Jansen Reventlow, 2nd March 2018

Last week, over 30 digital rights experts, activists and litigators came together in Berlin. Over two days, they brought into focus work done to advance digital rights in Europe and mapped next steps and new strategies for amplifying those efforts.

The meeting took place exactly two years after a previous gathering of digital rights experts, convened by Open Society Foundations. Following the need that was expressed there to increase strategic litigation efforts, DFF was founded, with the support of OSF and two other seed funders: Adessium Foundation and Omidyar Network.

The strategy meeting followed the consultation process we started in the summer of 2017, asking digital rights activists, experts and litigators what DFF could do to support their work. Following a number of smaller local meetings, 33 individuals and representatives of digital rights, human rights and consumer rights organisations from across Europe gathered to collectively discuss the state of play for digital rights in the region and what can be done to further strengthen those efforts.

Photo: DFF/Gábor Csuday
Photo: DFF/Gábor Csuday

The gathering was kicked off with a mapping of current work done in the field. This yielded an impressive overview of activities ranging from issues like government surveillance, algorithmic profiling, to net neutrality, copyright and online content restrictions. An inventory of existing digital rights litigation work was collectively developed, after which the group focused on potential future legal cases to advance and strengthen digital rights.

Working in smaller groups across the various spaces of Kreuzberg’s betahaus – fueled by their excellent coffee and under the high-energy facilitation of Gunner of Aspiration – detailed work was done on issues such as collaboration across the field (including the identification of potential obstacles), connecting litigation to broader advocacy efforts, and breaking the digital rights “bubble” by building bridges with the broader human rights field. Initial case development conversations were started on amongst others government surveillance, the GDPR, the collection of digital evidence, and net neutrality.

The need for increased information sharing, skill building and skills sharing, as well as pre-litigation research work was discussed in detail, resulting in the formulation of a number of concrete plans to address those needs.

For DFF, the meeting was an affirmation of the impressive work being done in the digital rights field, giving us a sense of the possibilities for integrating and aligning strategies to scale impact. In their feedback on the event, one participant called it “truly inspirational”. We couldn’t agree more. We are inspired by everyone’s expertise and dedication and are excited to continue building on the enthusiasm and sense of urgency present in the room last week for taking collective work to the next level over the months and years to come.

Connecting litigation with other efforts: strategic litigation as a tool in the toolbox

By Nani Jansen Reventlow, 19th February 2018

A closer look at strategic litigation, part 3.

Part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support; part 2: Just a lawsuit or a case for a cause: what makes litigation “strategic”?

In a previous part of this short series on strategic litigation, we discussed how one of the important characteristics of a strategic case is that it forms part of a wider strategy or movement. This stems from the basic premise that successful strategic litigation conducted in isolation cannot achieve its full potential impact. But also because the case and “the cause” are not always the same.

The case is usually a stepping stone in furthering a cause or put differently: litigation is one of the many tools in the toolbox in pushing for change – a potentially powerful tool, but also one where its powers are significantly influenced by the context in which it takes place. Litigation works when combined with other instruments for change: advocacy, lobbying, and the political “inside game”. There are many reasons for this.

First, aligning work inside the courtroom with activities outside it can increase the effectiveness of your litigation work. A perhaps mundane, yet important factor can be the speed with which the court will decide a case. Courts often have a significant caseload to handle and prioritisation – by necessity – often takes place based on urgency. If an issue comes before the court that is high on the agenda of public debate, this can be an incentive to consider the matter more expeditiously.

Second, by not connecting litigation efforts with public messaging, an important opportunity is missed in informing the wider public about the issue being litigated in court. This sometimes requires some translation work; not all legal concepts are easily relatable for a general audience and what is at stake needs to be presented in a different way than to a judge. But it is an important task: if the case is important enough to go to court, why shouldn’t the public whose interest you’re trying to benefit with the case know what you are trying to achieve? Moreover, they can bring important support to your case (and cause!) by making their voice heard.

This ties into a third factor: implementation. A win in court does not automatically mean that the policy, law or practice you sought to change will be fixed. More work will be needed to push for implementation, legislative follow-up, and sometimes also in the courtroom. To fight these battles on multiple fronts, it is important to have partners who are skilled in pursuing those objectives together. On the other end of the spectrum is the situation where a case is lost. In some circumstances, a loss in court can still be leveraged into a win on other fronts. For example, public outrage about a judicial outcome can help create a necessary push for legislative change. Here, public support, as well as strategies and partners outside the courtroom are essential.

Social and structural change is a long-term battle. Different strategies are needed at different points in time to pursue the objective or “the cause”. Litigation is one tool that can be employed as part of those strategies, but ultimately, “the case” is only one of many steps taken in the pursuit of a bigger cause. This realisation is crucial and also opens up many new potential avenues for identifying cases that can potentially support the pursuit of the cause. By building longer term alliances and partnerships that include a variety of skillsets (advocacy, litigation, policy, technical expertise) around an issue, you create a network where you can share information and find good options for litigation or even proactively create test cases. You also create a fertile landscape where efforts on one front can positively influence the others and vice versa.

In developing DFF’s grantmaking criteria, we are taking these factors into account. In assessing future applications, we will be more compelled by case proposals that not only demonstrate a solid legal strategy, but also a broader advocacy strategy around the litigation, where needed in collaboration with partners that can offer expertise the litigants do not have themselves. This can include advocacy, lobbying and media outreach.

We welcome your views and encourage you to share them with us as we continue developing our plans.

This post is the third of a series on strategic litigation. Also read part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support and part 2: Just a lawsuit or a case for a cause: what makes litigation “strategic”?

Digital Freedom Fund launches to support digital rights litigation in Europe

By Nani Jansen Reventlow, 25th January 2018

Launched on 25 January, the Digital Freedom Fund (DFF) supports strategic litigation to advance and protect digital rights in Europe. Operating from Berlin and Brussels, it provides financial support to NGOs and individuals litigating to protect human rights in online and networked spaces and supports coordination and collaboration between digital rights activists in Europe. DFF will open for grant applications in Q2 of 2018.

The Digital Freedom Fund responds to an identified need to strengthen strategic litigation on digital rights and increase the impact of both litigation and advocacy to protect and advance the enjoyment of human rights in the digital sphere.

Since October 2017, DFF has been seeking input from the digital rights community on its strategy and funding priorities. Please get in touch to share your views.

The first call for funding applications is scheduled for April 2018. Receive a notification by signing up for updates here.

DFF is led by Nani Jansen Reventlow, an experienced human rights lawyer and strategic litigator. “We are very excited to launch the Digital Freedom Fund. Litigation is a powerful tool to push back on the curtailment of our human rights in the digital sphere. By supporting the digital rights community in the important work it does, we pursue an open and democratic society in which people can freely exercise their rights.”

DFF is supported by a Board and a group of friends. “Ensuring that our human rights are protected online is crucial, especially as more and more parts of our lives enter the digital sphere” said David Kaye, UN Special Rapporteur on freedom of expression and part of the group of friends of the Digital Freedom Fund. “The Digital Freedom Fund will help reinforce the efforts of those fighting for our rights online, including the right to freedom of expression.”

The Digital Freedom Fund is grateful for the support of the Open Society Foundation, Adessium Foundation, Omidyar Network and the Renewable Freedom Foundation, and expresses its thanks to the Advisory Group that helped develop DFF.

Stay up-to-date with the Digital Freedom Fund by signing up for DFF’s newsletter or by following DFF on Twitter.