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

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.

Sign up for DFF’s newsletter to stay up-to-date on our work to support digital rights activists and litigators in Europe.

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