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

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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