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:

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

A tale of three cities: practitioners from London, Berlin and Amsterdam share their views on digital rights litigation in Europe

By Nani Jansen Reventlow, 9th November 2017

This summer, we started asking digital rights litigators and activists in Europe what they were working on and how DFF could support it.

What are the most pressing issues in digital rights and which of them can potentially be addressed through litigation? What threats and opportunities should we anticipate in the future when it comes to digital rights and how can we address them? What can DFF do to make good things happen for digital rights in Europe?

The individual conversations we had over the past months showed a committed and passionate field of organisations and individuals who – while differing in approach and emphasis of their work – shared a deep dedication to advancing digital rights in Europe, be it in the area of privacy, copyright, data protection, or other. There also was a clear wish to increase collaboration and information sharing across the field.

Last week, we visited London, Berlin and Amsterdam, where we asked local activists to share their views with us over a beverage. This yielded further insights in how we might all work together, on which issues, and how DFF could facilitate that.

In London, the conversation went deep into the issue of government surveillance and into the GDPR; what might the new EU Directive mean and what could possible strategies for both advocacy and litigation look like?

In Berlin, we discussed what could be considered a “good” or a “bad” court case and how litigation tied in with other efforts such as public campaigning and targeted lobbying. The Amsterdam conversation focused on the different funding models that would be helpful to the community, how to connect litigation with academia, and ways to encourage pro bono support from commercial law firms.

Numerous good ideas were floated and we look forward to further exploring with you what DFF’s priorities should be in the short, median and longer term. We will continue engaging with the digital rights community over the coming months, but please don’t wait for us to ask questions to share your views – get in touch with us.

Introducing the Digital Freedom Fund

By Nani Jansen Reventlow, 1st October 2017

I am excited to introduce the Digital Freedom Fund. DFF will seek to support strategic litigation on digital rights in Europe through two main activities: providing financial support for strategic court cases and facilitating increased collaboration between those working to advance digital rights. The Fund will also assist litigators in finding pro bono legal support to further strengthen their litigation work. DFF will not itself litigate or engage in lobbying, rather it will seek to leverage the strong work digital rights organisations in Europe are already doing.

Litigation can be a crucial lever to achieve change. Legislation and regulations that negatively affect people’s ability to exercise their digital rights are introduced on an ongoing basis, but Europe has a constitutional framework that can be used to challenge these laws. The European Convention on Human Rights and the EU Charter of Fundamental Rights, as well as national constitutions, guarantee the rights to privacy, freedom of expression and assembly; rights that apply in the digital context just as they do offline.

Some important legal victories illustrate the potential of litigation, such as the invalidation of the Safe Harbour agreement and Data Retention Directive by the Court of Justice of the European Union. At the national level, the UK Investigatory Powers Tribunal handed down a powerful ruling on surveillance, and administrative complaints have forced tech giants like Apple to amend their consumer terms.

These examples bode well for the expected impact of a concerted effort in protecting digital rights in Europe through litigation. The Digital Freedom Fund is looking forward to working with the many organisations doing fantastic work in this area, as well as those operating in the policy field, to help increase the impact of their work.

In the coming months, DFF will engage in a consultative dialogue process with those working in the digital rights field to learn what their priorities are and how the Fund can best help pursue them. This will help determine DFF’s funding priorities and overall strategy going forward.

We would love to hear your views and welcome your input via info@digitalfreedomfund.org.

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