Here’s to a new kid on the block

By Raegan MacDonald, 22nd January 2018

I have always been passionate about the promise of technology: It can connect, educate, and empower us, on both an individual and societal level. But as with any powerful and transformative phenomenon, the knife cuts both ways.

Just as the internet can facilitate the exercise of rights, it can just as easily quash them. More and more, we’re becoming painfully aware of this double-edged sword: online trolling, hate speech, misinformation and “fake news”, government moves to break secure systems, and massive data breaches seem to be becoming routine. This is what’s kept me in Brussels for so many years, working for internet policies that advance a healthy internet ecosystem and work for – and not against – the interests of users.

The tension between the speedy pace of technology and the bureaucratic processes of law-making – mixed with complex social and economic challenges – means that the laws regulating technology require a thoughtful approach. This approach must be grounded with a clear problem definition, feature technological expertise, and include transparent negotiations where all stakeholders have a say. You don’t have to be a Brussels insider to know that this is rarely the case.

Often, the relationship between the laws that govern technology and the exercise of digital rights are at odds. The causes are varied. Sometimes the legalese doesn’t translate seamlessly into user rights. Sometimes enforcement is either weak or insufficient. And sometimes the law infringes on digital rights like freedom of expression or the right to a private life. This is frequently the case with sweeping government surveillance laws, such as the UK’s Investigative Powers Act.

With the scale and complexity of challenges on the rise, it’s more important than ever that our laws truly do serve the public interest. When they don’t, we should be able to reform them, or even strike them down – especially if they are out of step with democratic norms. Strategic litigation can be a useful intervention to advance or enforce digital rights, from issues like net neutrality and data protection to the regulation of speech.

This is where the Digital Freedom Fund comes in. DFF’s mission is to support and expand a growing field of digital rights litigators, to facilitate a community driven strategy, and, of course, to fund cases. The organisation itself will not do any litigating; instead, it will serve as an engine to drive strategic litigation efforts across the continent.

In my view, this couldn’t come at a better time. In the area of impact litigation, there are many actors in the field, already launching cases to challenge laws and to enforce consumer rights. But litigation is often expensive, and thus a risky endeavour for most non-profit actors. Cases can go on for years, a disincentive for groups unable to commit the resources for such an extended period of time. And it’s not just about winning the case; building the advocacy around it to ensure that it can’t be ignored or disregarded is another key element. Further, simply determining which cases to engage with can be a lengthy and resource-intensive process.

I believe DFF has the potential to meaningfully support impactful litigation in the EU and, in doing so, advance the field of digital rights in Europe. As Chair of the Board, I am honoured to be a part of this organisation, and very much looking forward to getting to work. I will participate in the upcoming stakeholder meeting in Berlin at the end of February, which will draw on months of extensive consultation with actors in the field to forge DFF’s 2018 strategy. If all goes well, we’ll be ready to provide grants by April 2018.

If you’d like to participate in this process, please feel free to reach out to DFF and help us figure out what strategic litigation in Europe should look like.

Here’s to a new kid on the block.

Digital rights and fostering pro bono culture in Europe

By Atanas Politov, 12th January 2018

One of our aims at DFF is to assist digital rights activists in finding high-quality pro bono assistance for their legal work. Helping to foster a strong pro bono culture in Europe is important in that context, as it will enhance and enrich the pool of talented lawyers putting their skills towards advancing digital rights in the region.

For those who prefer their Latin served complete, “pro bono”, is short for “pro bono publicum”. The phrase translates as “for the public good”, referring to professional work undertaken on a voluntary basis and without payment. In the context of legal services, pro bono helps make legal services available to those who cannot afford lawyers.

Lawyers, much like doctors, are among the few professions that have been providing free professional advice for decades if not centuries. The globalisation of the legal market over the past 10 to 15 years has also brought changes to the way pro bono is practiced. All major global law firms, with offices in most capitals and financial centers in Europe, have appointed full time pro bono and/or corporate social responsibility professionals to run and manage their – now institutionalised – pro bono practice. Many law firms have also adopted pro bono policies that require or strongly encourage lawyers to do a minimum amount of pro bono work per year. While motivations for that may vary – from pure altruistic motives to retaining talent within the firm by making your lawyers happy, to business development reasons based on clients’ preferences ­– this creates a huge amount of resources, many of which are still untapped.

In Europe, most major law firms have a solid presence throughout the region. From Paris, Milan and Frankfurt, to Warsaw, Budapest and Moscow, dozens of global and local business law firms encourage their lawyers to do pro bono work. Over the past decade, several “brokerage” organisations, usually called pro bono clearinghouses, have been set up to serve as a bridge between the law firms and the pro bono clients, usually non-profit organizations. Most of the work done by law firms for those NGO clients concerns the NGOs’ own legal needs – DFF, for example, was registered and drew up its employment agreements with pro bono support from Dentons, and is developing its data retention and privacy policies with the assistance of DLA Piper.

In less frequent, but very powerful examples, corporate law firm lawyers also support NGO programmes, working with individual clients or groups of people. This type of direct assistance in for example litigation matters, is becoming more frequent in the UK, where a strong pro bono culture exists amongst barristers, but it is slowly becoming more accepted in the corporate law firm sphere as well. This is a positive development that we would like to help foster. Big law firms can bring an enormous boost in capacity to smaller litigators, be it in legal research, drafting, or thinking about (international) litigation strategies. What, considered in the broader context of a law firm’s overall time and manpower, is a relatively small investment can have significant impact when these efforts are connected with a dedicated digital rights litigator.

In light of the above, we have two invitations. To digital rights activists, let us know: if you had access to any lawyer or law firm of your choosing, who would that be? What would you ask their help for? To all European lawyers and law practices: if you want to support the fight for digital rights, get in touch!

Just a lawsuit or a case for a cause: what makes litigation “strategic”?

By Nani Jansen Reventlow, 10th January 2018

A closer look at strategic litigation, part 2

Part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support; Part 3: Connecting litigation with other efforts, strategic litigation as a tool in the toolbox

What is referred to as strategic litigation comes with a variety of labels: impact litigation, tactical litigation, test case litigation, public interest litigation and even “radical lawyering”. There are also definitions abound, some of which focus more targetedly on giving a voice to the voiceless and some of which take a broader approach.

There are, however, certain characteristics that most schools of thought have in common when it comes to using litigation as an instrument for change.

First, that litigation efforts are aimed at bringing about change, be it in the law, its application, or the wider policies around an issue.

Second, that the impact of the case goes beyond the individual or group acting as claimants.

And third, that the case is part of a wider strategy or movement.

Does this mean that every case that meets these criteria can be considered strategic? This is a fundamental question and one that we at DFF are exchanging views on with the digital rights community as we develop our strategic litigation grantmaking strategy.

One of the crucial issues to consider is how to balance the needs of the individuals involved in a case and the needs of what can be referred to as “the cause.” If a case results in vindication for an individual, but fails to have the intended domino effect of more systemic change, can we no longer consider the case to be strategic? In other words: does setting a strong legal precedent suffice?

And considered from the other side: what if a case does not end positively for the claimants, but does bring about change on other fronts (legislative, policy change) – can that be considered a win? What if you have the perfect advocacy and lobbying strategy lined up around your lawsuit and the claimant prefers to settle rather than go to court? How do you strike the right balance?

Then there is the question of the impact of the case: how wide should the potential change brought about by the litigation be in order to be considered strategic? DFF seeks to advance digital rights in Europe with its litigation support: does that mean that a Europe-wide effect needs to be guaranteed? Or could a case affect a cause nationally, potentially with a spillover effect into other jurisdictions?

These are difficult questions and ones for which no easy or common answer can be found.  They also touch upon a fundamental challenge, namely how to unite the interests of individuals with the interest of the public, whether it’s a national public or an international one.

We are eager to hear your thoughts on this and encourage you to share them with us. In the coming months, we plan to organise an interactive webinar with experienced international litigators to further discuss these and many other issues, and explore how they impact on strategic litigation work in Europe. Follow us for further updates and join in on the conversation.

This post is the second of a series on strategic litigation. Next post: Connecting litigation with other efforts: strategic litigation as a tool in the toolbox. First post: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support