Connecting litigation with other efforts: strategic litigation as a tool in the toolbox

By Nani Jansen Reventlow, 19th February 2018

A closer look at strategic litigation, part 3.

Part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support; part 2: Just a lawsuit or a case for a cause: what makes litigation “strategic”?

In a previous part of this short series on strategic litigation, we discussed how one of the important characteristics of a strategic case is that it forms part of a wider strategy or movement. This stems from the basic premise that successful strategic litigation conducted in isolation cannot achieve its full potential impact. But also because the case and “the cause” are not always the same.

The case is usually a stepping stone in furthering a cause or put differently: litigation is one of the many tools in the toolbox in pushing for change – a potentially powerful tool, but also one where its powers are significantly influenced by the context in which it takes place. Litigation works when combined with other instruments for change: advocacy, lobbying, and the political “inside game”. There are many reasons for this.

First, aligning work inside the courtroom with activities outside it can increase the effectiveness of your litigation work. A perhaps mundane, yet important factor can be the speed with which the court will decide a case. Courts often have a significant caseload to handle and prioritisation – by necessity – often takes place based on urgency. If an issue comes before the court that is high on the agenda of public debate, this can be an incentive to consider the matter more expeditiously.

Second, by not connecting litigation efforts with public messaging, an important opportunity is missed in informing the wider public about the issue being litigated in court. This sometimes requires some translation work; not all legal concepts are easily relatable for a general audience and what is at stake needs to be presented in a different way than to a judge. But it is an important task: if the case is important enough to go to court, why shouldn’t the public whose interest you’re trying to benefit with the case know what you are trying to achieve? Moreover, they can bring important support to your case (and cause!) by making their voice heard.

This ties into a third factor: implementation. A win in court does not automatically mean that the policy, law or practice you sought to change will be fixed. More work will be needed to push for implementation, legislative follow-up, and sometimes also in the courtroom. To fight these battles on multiple fronts, it is important to have partners who are skilled in pursuing those objectives together. On the other end of the spectrum is the situation where a case is lost. In some circumstances, a loss in court can still be leveraged into a win on other fronts. For example, public outrage about a judicial outcome can help create a necessary push for legislative change. Here, public support, as well as strategies and partners outside the courtroom are essential.

Social and structural change is a long-term battle. Different strategies are needed at different points in time to pursue the objective or “the cause”. Litigation is one tool that can be employed as part of those strategies, but ultimately, “the case” is only one of many steps taken in the pursuit of a bigger cause. This realisation is crucial and also opens up many new potential avenues for identifying cases that can potentially support the pursuit of the cause. By building longer term alliances and partnerships that include a variety of skillsets (advocacy, litigation, policy, technical expertise) around an issue, you create a network where you can share information and find good options for litigation or even proactively create test cases. You also create a fertile landscape where efforts on one front can positively influence the others and vice versa.

In developing DFF’s grantmaking criteria, we are taking these factors into account. In assessing future applications, we will be more compelled by case proposals that not only demonstrate a solid legal strategy, but also a broader advocacy strategy around the litigation, where needed in collaboration with partners that can offer expertise the litigants do not have themselves. This can include advocacy, lobbying and media outreach.

We welcome your views and encourage you to share them with us as we continue developing our plans.

This post is the third of a series on strategic litigation. Also read part 1: Litigation as an instrument for social change – laying the foundations for DFF’s litigation support and part 2: Just a lawsuit or a case for a cause: what makes litigation “strategic”?

Digital Freedom Fund launches to support digital rights litigation in Europe

By Nani Jansen Reventlow, 25th January 2018

Launched on 25 January, the Digital Freedom Fund (DFF) supports strategic litigation to advance and protect digital rights in Europe. Operating from Berlin and Brussels, it provides financial support to NGOs and individuals litigating to protect human rights in online and networked spaces and supports coordination and collaboration between digital rights activists in Europe. DFF will open for grant applications in Q2 of 2018.

The Digital Freedom Fund responds to an identified need to strengthen strategic litigation on digital rights and increase the impact of both litigation and advocacy to protect and advance the enjoyment of human rights in the digital sphere.

Since October 2017, DFF has been seeking input from the digital rights community on its strategy and funding priorities. Please get in touch to share your views.

The first call for funding applications is scheduled for April 2018. Receive a notification by signing up for updates here.

DFF is led by Nani Jansen Reventlow, an experienced human rights lawyer and strategic litigator. “We are very excited to launch the Digital Freedom Fund. Litigation is a powerful tool to push back on the curtailment of our human rights in the digital sphere. By supporting the digital rights community in the important work it does, we pursue an open and democratic society in which people can freely exercise their rights.”

DFF is supported by a Board and a group of friends. “Ensuring that our human rights are protected online is crucial, especially as more and more parts of our lives enter the digital sphere” said David Kaye, UN Special Rapporteur on freedom of expression and part of the group of friends of the Digital Freedom Fund. “The Digital Freedom Fund will help reinforce the efforts of those fighting for our rights online, including the right to freedom of expression.”

The Digital Freedom Fund is grateful for the support of the Open Society Foundation, Adessium Foundation, Omidyar Network and the Renewable Freedom Foundation, and expresses its thanks to the Advisory Group that helped develop DFF.

Stay up-to-date with the Digital Freedom Fund by signing up for DFF’s newsletter or by following DFF on Twitter.

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.