As we are preparing to engage in conversation with old and new friends at our annual strategy meeting this week, it is a good time to take stock of the developments we have seen since our first meeting in 2018 and look ahead at what is still to come.
One of the most prominent developments in 2018 was of course the entry into force of the GDPR, which led to some early wins as well as promising initiatives pushing for greater protection of our personal data. We have seen the first claims being brought against major online patforms over the collection of data subject consent, initiatives being developed to take on the AdTech ecosystem, and the first GDPR fines being imposed by data protection authorities against corporations such as Google. However, much of the potential of the Regulation remains under-explored, not least in the context of the much-discussed realm of AI, in particular looking at the GDPR’s restrictions on decisions based solely on automated processing,such as profiling. We look forward to supporting various initiatives to enforce the rights provided under the GDPR through cases that can set precendent that will help clarify its scope of protection.
Looking at the important issue of surveillance, the ECtHR judgment in the case of Big Brother Watch and Others v. United Kingdom (also known as the “10 NGOs” case) resulted in a partial, but not entirely comprehensive, win. The Court found that aspects of the UK bulk surveillance regime, including the authorities’ access to data held by communications service providers, was incompatible with Articles 8 and 10 of the European Convention on Human Rights, which protect the rights to privacy and freedom of expression. Nevertheless, the parties pursuing the case are hoping that the European Court’s Grand Chamber — which recently accepted the case for review — will reconsider other aspects of the case, such as the finding that, in principle, bulk surveillance was compatible with the Convention and that the intelligence sharing regime did not violate Articles 8 and 10.
The European Court of Human Rights also handed down, in Magyar Jeti v. Hungary, its first judgment on liability for hyperlinking in defamation cases. This is a strong precedent that will help towards safeguarding the free flow of information online by protecting website publishers from absolute liability in contexts where they merely hyperlink to defamatory content on another site.
Looking ahead at 2019, we expect a great deal of activity around AI, algorithmic decision-making, machine learning and any of the other headers under which the “next frontier” of digital rights is currently being discussed. We should be prepared for some of the battles to be fought in what perhaps aren’t conventionally considered to be digital rights fields, such as labour law, health care, and the like. The Houston Teachers case in the US, which set an important precedent around the due process concerns raised by the use of algorithms in the employment context, is an important example in that regard. One of the issues we hope to explore this week during the strategy meeting is therefore how we can create better connections between the “digital” rights field, human rights field, and others who will likely share the frontlines with us in fighting for our rights in the digital sphere.
At DFF, we are looking forward to facilitating further dialogue across the full human rights spectrum when it comes to the digital sphere; supporting diversification (or decolonisation — more on that is to follow) and general strengthening of the field by, among other things, developing strategic litigation toolkits, exploring greater connectivity between the field and academia, and of course supporting amazing cases and pre-litigation research.
As always, your views and input are invaluable to us, so even if you are not able to join us in Berlin this week, please get in touch to share your ideas, comments and suggestions with us. We look forward to hearing from you as we continue our support to those working to advance digital rights in Europe.