DFF is coming to the end of its first 3-year strategy cycle, what we informally have referred to as the “pilot phase”. The end of our pilot phase also means the closure of our current grantmaking process.

DFF will not accept any further grant applications in 2020 as we are working to finalise a new, revised process, which we are looking forward to launching in early 2021.

DFF has changed significantly since we were first introduced to the world in October 2017. Based on input from the digital rights field, we established a strategy and priorities for our funding, we launched a grantmaking process, coordinated annual strategy meetings, facilitated strategic litigation retreats, and held field building workshops on topics like the GDPR, algorithm use, and competition law.

We were very happy that a recent external evaluation concluded these activities are seen as adding important value to the digital rights field.

While we were able to take important first steps in supporting the digital rights field during the pilot phase, there are areas where we can do more to make sure we are best serving its needs. One area of particular importance is our grantmaking.

The current grantmaking process was launched in July 2018, after being developed in dialogue with the digital rights field. By the end of 2020, DFF will have approved more than 40 grants, worth a total of over €1.5 million, supporting the litigation and pre-litigation research projects of 30 different organisations and individuals across Europe. Many of these projects are detailed on our case study page and in our annual report, with more to be published over the coming months.

By the end of 2020, DFF will have approved more than 40 grants, worth a total of over €1.5 million

Building on the participatory approach taken in developing the initial grantmaking process, DFF has continued to revise its grantmaking throughout the pilot phase. We actively sought feedback through regular surveys, outreach, and conversations with applicants and grantees. In response to questions about the scope of our grants or what we expected to see in applications, we published guides and a frequently asked questions page to help organisations prepare their applications.

When we received feedback that the application process took too long, we developed a “fast-track” application process for grantees moving from one grant to another. We have also sought to add value in other ways: for example, in 2019, we developed a new framework to better capture the outcomes and impacts of strategic litigation.

We are proud of the many great projects we have been able to support over the last three years, and hope that the efforts we made to improve our processes during that time managed to address at least a good part of the needs of our grantees. But: there are some major limitations we can only overcome by changing the scope of the grantmaking process itself.

There are some major limitations we can only overcome by changing the scope of the grantmaking process itself

For example, many organisations have requested support for adverse costs – costs to cover possible court orders to pay the fees of the opposing party in the case of a loss – noting these costs are a major barrier to taking public interest litigation. While recognising that this was a welcome type of support, we also wanted to do justice to the complexity of the issue. How do you help litigators absorb the negative impact an adverse cost order might have on their operations, but without disincentivising courts to take the public interest into account and without, through funding support, incentivising frivolous litigation – the very thing cost orders are supposed to discourage?

We also wanted to make sure we adopted an approach that would be equitable across all of the geographical region DFF serves, and not just certain jurisdictions. Following detailed research and consultations, from 2021, applicants will be able to include adverse costs in their grant applications under certain conditions. Our new policy seeks to maintain a balance between helping to mitigate the impact of cost orders on digital rights litigators, while making sure DFF doesn’t unintentionally encourage the practice itself.

…from 2021, applicants will be able to include adverse costs in their grant applications under certain conditions

The biggest limitation of DFF grantmaking during the pilot phase was our inability to support long-term projects over multiple litigation instances. DFF was established to provide grants supporting strategic litigation, i.e. litigation that has an impact beyond the parties involved in the case and that leads to legal, policy or social change. However, this kind of impact often takes more than one instance of litigation to achieve. While providing this type of support was envisaged from the very early stages of DFF’s development, DFF being a young organisation made this impossible to implement from the start.

We are working to change this in 2021, when we hope to launch a new grantmaking process allowing organisations to apply for grants that support multiple instances of litigation. We are in final discussions to ensure the process carefully balances the demands of the field with operational constraints, and gets support from our funders and the DFF Board.

…we hope to launch a new grantmaking process allowing organisations to apply for grants that support multiple instances of litigation

The new process will also build on the lessons learned from the COVID-19 Litigation Fund, which was our first time providing grants of this nature. We hope the new process will allow applicants to more effectively plan their cases over a long period, with the confidence that they will be able to see a case through to the highest level necessary, and also provide an incentive to invest in building long-term strategies, coalitions and campaigns with other partners.

The end of the current grantmaking process will not affect current grantees, whose projects will carry on until they are completed. DFF will continue to move the small number of remaining active applications through our current process, with final decisions to be made before the end of 2020.

Look out for more details from us later in the year and please get in touch if you have questions or comments in the meantime –– as always, we welcome your feedback and input. We look forward to supporting more strategic litigation efforts to advance digital rights across Europe in 2021 and beyond.