Connecting digital rights litigators: A transatlantic call series

By Jason Williams-Quarry, 18th December 2019

How can we minimise the negative impact of the use of algorithms and machine learning on our human rights? Where do we see goals align for tackling the threat of facial recognition technology? How can I get in touch with lawyers in my jurisdiction working on Freedom of Expression online? How can we better understand when and how states create laws to bypass traditional encryption measures and how they are enforcing them?

 

These are some of questions that were explored during our 2019 transatlantic call series. This series of five calls between Europe and the US brought together lawyers, academics, researchers, and digital rights activists to share information, best practices, and lessons learned and to explore potential avenues for transatlantic collaboration.

 

The idea for the call series arose from conversations earlier this year between DFF and US lawyers from Electronic Frontier Foundation, Knight First Amendment Institute at Columbia University and the American Civil Liberties Union. In the course of these conversations, five thematic issues were identified that helped shape the focus of each meeting in the series.

 

In September, we kicked off our first call in the series with a round of introductions, to give all participants an opportunity to get to know each other’s work better and discuss the respective digital rights priorities on either side of the Atlantic. The second call focused on heat mapping thematic areas for transatlantic collaboration, and participants explored joint work on, amongst other issues, the privacy shield, facial recognition and the datafication of migrant and refugees’ data.

 

In break-out room discussions during the third call, participants looked at challenging anti-encryption measures in different jurisdictions; using the First and Fifth Amendment arguments in the US and fundamental rights to privacy in Europe. We also learnt how government bodies have tried to gain access to individuals’ phone data in Europe, and how organisations on either side of the Atlantic collaborated in bringing some of these cases to court.

 

During the fourth call, we learnt about the use of black-box algorithms in the criminal justice and social security systems, and the negative impacts these algorithms can have on individual human rights, especially vulnerable groups. The final call in the series focused on challenges to content moderation and social media blocking, including how public officials attempt to block dissenting voices on their social media accounts. Participants shared knowledge on the strategies used to bring cases to trial and garner public attention to infringements on human rights. We also heard about success stories in transatlantic collaboration on the right to be forgotten.

 

What we have appreciated most from these calls is how the participant-led discussions during each meeting helped build the foundation for the next; at the end of each session, participants shared lessons learned and made plans for follow-up and collaboration with one another.

 

We look forward to seeing a follow-up to this call series and are exploring ways in which we can organise an in-person meeting to do more in depth work on issues of mutual interest. If you have ideas on thematic focus for potential future activities, please let us know!

Competition law enforcement: a tool for digital rights litigators

By Nani Jansen Reventlow, 12th December 2019

How is competition law relevant to digital rights? How can digital rights litigators harness the competition law framework to further their work on data protection, freedom of expression and other digital rights issues? How can litigators in Europe and America collaborate and co-ordinate on competition law enforcement? 
 
These questions were explored during a 1,5-day training in Brussels this week, which brought together lawyers, researchers, funders and digital rights activists to learn more about the possibilities offered by the competition law framework and explore the opportunities for leveraging this powerful tool to advance digital rights both in Europe and across the Atlantic. 
 
The topic of competition or antitrust law has been a recurring topic of conversation at DFF meetings since its the first strategy meeting in 2018. This week, we were delighted to follow up on the request for more skillbuilding in this area by hosting a training session delivered by Aaron Khan from Brick Court Chambers, complemented by an international panel discussion and a set of key note talks. The meeting was supported by the NetGain Partnership, whose work currently focusses on better understanding the scale of dominant platforms’ influence and the increasing number of harms caused by such platforms.
 
After a keynote speech from Liza Lovdahl-Gormsen from BIICL, which informed participants of the possibilities that competition law had to offer in comparison with other regulatory frameworks such as the GDPR, it was time to zoom in on the legal basics. The training set out the  parameters for bringing competition law claims, familiarising participants with the legal rules and the options for pursuing breaches, both through complaints with the European Commission or national authorities and through litigation. The training unpacked the concepts and information contained in a short guide to competition law for digital rights litigators, which provides an overview of the main principles of EU competition law and how they are applicable and enforceable in relation to the digital sector.
 
An international panel with representatives from consumer law and human rights-focused organisations from Europe and the US (Article 19, BEUC, Knight First Amendment Institute, Open Market Institute, Privacy International and Public Knowledge), looked at how these two jurisdictions interact and complement each other and where the next opportunities might lie to take action on protecting digital rights. This was complemented by the perspective from Brazil, where consumer organisation Idec has been exploring digital rights litigation. The keynote address on day two nicely built on what had been learned during the training the previous day: Thomas Vinje of Clifford Chance shared his personal experience litigating a number of key competition cases against Big Tech
 
After a practical look into how to file a successful complaint with the European Commission and a brainstorming session on potential future cases, Jonathan Todd –– former journalist and former European Commission spokesperson –– discussed with the group how to effectively communicate competition law issues to the public. Conversations continued long after the session had been drawn to a close, demonstrating the energy and enthusiasm participants brought to the meeting.
 
We are very excited to have had the opportunity to host this meeting, which clearly addressed a desire for further learning from the field. In the spring of this coming year, we will build on the conversations of this week with a second workshop that will do deeper strategising around what key competition issues might be ripe for litigation or other action by the digital rights field.
 
While competition law, as was discussed during the workshop, is not the solution to all digital rights challenges, it can be an effective tool worth exploring and one that will be a valuable addition to digital rights litigators’ toolbox in fighting for our human rights in the digital sphere. We are looking forward to exploring further where competition law might fit in with the field’s other important work in protecting and pomoting digital rights. 

Advancing Digital Rights through Competition Law

By Jonathan McCully, 9th December 2019

How can we leverage competition law to protect and promote our digital rights? This question was raised during DFF’s strategy meeting earlier this year, where we asked digital rights organisations from across Europe what their priorities were and what DFF could do to best support them. A number of participants talked about their interest in engaging with competition law claims, alongside data protection and human rights ones, to hold platforms to account for abusive and infringing conduct.

The topic had come up at previous DFF events, which is not surprising given that European institutions in recent years have demonstrated a willingness to enforce aspects of competition law against Big Tech companies. In June 2017, for example, the European Commission fined Google €2.42 billion for abusing its dominance in the search engine market. Since then, Google has been fined two further times by the Commission over anti-competitive practices. Discussing this at the strategy meeting, participants concluded that there may be opportunities to enforce this area of law in a way that also advances digital rights. Before pursuing such opportunities, however, they noted it would be useful to build more knowledge on how competition law might be applicable to the platform or big data economy, and how such issues can be litigated.

To help facilitate deeper thinking and discussion on the topic, DFF has published “A Short Guide to Competition Law for Digital Rights Litigators.” The guide, written by Aaron Khan of Brick Court Chambers, provides an overview of the key principles of EU competition law accompanied by specific examples of how these principles might apply to the digital or technology sector. The guide also sets out steps digital rights litigators can take if they identify potential infringements of competition law in the digital space, including an overview of the positive and negative aspects of pursuing complaints with the European Commission and/or litigation on the topic. We hope that this guide will be a useful resource for digital rights litigators who wish to engage in competition law issues as part of their ongoing and future work.

This week, we are excited to be testing this guide at a two-day training workshop in Brussels. The workshop, supported by the NetGain partnership, will bring together over twenty digital and consumer rights organisations from the US, Europe and Latin America. During the two days, participants will consider the EU competition law framework and discuss potential opportunities to enforce this framework as a means for protecting and promoting digital rights. Lawyers who have already identified and challenged competition law infringements by Big Tech companies, such as Google and Facebook, will share their personal experiences and organisations working on competition law issues in Europe and America will discuss the similarities and differences in approach in their jurisdictions, and where there might be opportunities for transatlantic co-operation on cases.

Next year, we would like to build on the work covered during this workshop with a follow-up meeting in Spring 2020, where participants will carry out some deeper planning around how they can practically engage with competition law issues in their work, including through litigation. We look forward to seeing how we can support this work in the new year. In the meantime, keep an eye on our blog for updates and guest posts following the workshop to find out what was discussed at the event!