New Charter unlikely to solve ailments of fundamental rights in digital environments

When we produce charters, conventions and constitutions and call for our governments and states to uphold and respect these documents, we do so knowing that the production of such documents is hard work and the enforcement, even more so.

In spite of such challenges in the production and enforcement of charters, conventions and constitutions, the European Union is now equipped with the Convention for Human Rights (ECHR), the Charter of Fundamental Human Rights (the Charter) and a number of constitutions that dictate in no weak language the relationships which we consider desirable between citizens and their rulers.

Franz von Weizsäcker and Norman Schräpel call for broader, pan-European discussions on a new European Charter, covering only the digital environment. Such a charter for the digital world has been inspired by the passing of the Marco Civil da Internet by the legislature in Brazil and such a document was discussed in Italy. It’s been called for by Sir Tim Berners-Lee, inventor of the web and founder of the Web Foundation, inspired by the Magna Charta. One such Charta has been discussed in the European Parliament committee on liberty and justice on the 5th of December 2016 - detailing rights on algorithms, profiling, net neutrality, information security, artificial intelligence, data sovereignty and the need for constitutions.1 Franz von Weizsäcker and Norman Schräpel rally around a Charter (similar to the one discussed by the European Parliament) as a possible middle way between the US internet governance, dominated by corporations, and the Chinese internet governance, dominated by the state.

Moral fibre went lost

It is of course a matter of personal taste and political opinion whether one wants to embark upon the project of producing a Charta, a specialised Charta for the digital world. But as such, my personal taste and reflection is that one more conventional text is not going to help in the creation of a socially, economically and politically juste digital environment as long as we cannot ensure that governments uphold their already existing human rights commitments. As long as our political leaders lack the moral fibre to uphold the rights of their own citizens and to uphold the rights of constituents of other territories, more documents creating ever more diluted rights is not the way forward.

In this vein, having yet another document on human rights is not going to make France cease its state of exception, where no rights apply for individuals except the right not to be arbitrarily killed.2 Such an additional document is not going to stop the United States from extra-legally killing non-combattants in territories with which they are not at war.3 It is not going to convince the United Kingdom that exempting troops from human rights obligations is a disastrous way ahead.4

Similarly, such a document will not convince the Swedish government that mass surveillance and internet filtering, both unrestrained by due process in or transparency for public authorities that benefit from those measures, is not a good idea.5 Even in the face of the Secretary General of the Council of Europe in 2016 announcing mass surveillance and internet filtering two of his three top priorities for due process in the digital world in the upcoming years,6 both the Swedish government and the national media have been silent. Domestic respect for human rights in the online environment in Sweden is presently restricted to a commitment to endeavour further developing the Swedish government website for information about human rights.7

It's not so much the proliferation of charters that is the problem - it is that governments are no longer following their commitments. The moral fibre of the global political class is null, and drafting another charter is unlikely to remedy this problem.

Timing is everything

My second objection is that it is simply not the right time to create such a Charta. In the draft I saw discussed by the European Parliament commitment, the digital rights included aimed only to specify or restrict more general rights that already exist in the ECHR, the Charter, the EU framework agreements, or national constitutions. It will address the right to data protection, consumer protection under certain circumstances, or a call for better competition between service providers, but surely all these aspects are already covered by our current laws? In many of these areas we’ve seen significant legal developments in the past few years, and discussing a Charta at this time could only risk undoing what little progress has been made.

Consider, for instance, the case of Verein für Konsumentinformation (VKI) v Amazon EU Sárl (C-191/15), arbitrated by the European Court of Justice on 28 July 2016.8 The ruling establishes that there is a way for consumer organisations in member states to act against unfair contract clauses, agreed between consumers in one member state and digital platforms in another member state. With such a way to enforce consumer rights, surely we already possess the tools we require to challenge contractual arrangements that have until now made it difficult for us to exercise our individual rights to algorithmic transparency,9 data protection, information security10 and data sovereignty. European law on data protection is already strong – constitutionally as well as in secondary law. The problem is not the lack of recodification of its principles but the difficulty of enforcement.

Another case to be watching is the Norwegian consumer group Forbrukerrådets challenge of unfair contract terms for fitness apps.11When the Forbrukerrådet and the VKI cases are finally settled, we – the consumers – will hopefully have a way to challenge unfair contract terms, and when the unfair contract terms go away, data protection authorities will be able to step in and consider the appropriateness of specific practices that have until now been protected by private contracts. Put more simply, one could argue that our predicament with privacy rights in the digital private sector has been that Data Protection Authorities have not been given the competency to determine if a particular contractual arrangement aimed at removing from the data subject some of her or his rights is actually ”fair” within the meaning of consumer law, and until now consumer groups have taken only little interest in the precarious waters of end-user license agreements.

Would a Charta help further these positive developments in the consumer rights sphere? It is doubtful. Any political process will be burdened by lobbyism, and in this case two-fold lobbyism: we have states that clearly have no desire to uphold even the existing rights of individuals, and we risk ending up with companies using the negotiation of a new charters as a stepping stone to undo the consumer rights advancements. It is very difficult to see an outcome which services individual interests well, politically and economically.

Similarly, on the topic of net neutrality and competition, the specific rules of the EU area are already laid down in the Regulation on an open internet connection from 2015. The Swedish national regulatory authority for telecommunications has been an early arbitrator of the meaning of this regulation. On 7 December 2016, it decided that the regulation does not force the regulator to consider competition issues which may arise between information society service providers due to cooperation agreements between the electronic communications service sector and the information society services as we understand them in EU law.12 Practically, this means that the Swedish incumbent telecommunications operator is free to enter into agreements with an incumbent social network service provider over zero-rating, only under the condition that the consumer also buys a datapack from the incumbent for non-social network services. The reasons for why the regulator makes this assessment is, in my understanding, twofold: it lacks the resources and the expertise to make assessments of the competitive landscape in the social network service sector, online advertisement sector, and communication services for end-consumers sector. Its resources are collected from administrative fees leveraged from telecommunications operators that are not interested in financing the delicate and expensive process of making appropriate competitive assessments for non-electronic communications services markets.

While the European Commission Directorate on Competition has made a number of advances in mapping the information society service sector,13 notably in Google/Doubleclick, Microsoft/Yahoo! Search Business and Facebook/Whatsapp, mapping of online advertisement services, communication services for private persons or social networking services has, up until now, been made mostly in merger decisions. Doctrine is surprisingly scarce, and even in those EU member states where private competition enforcement has been at least nominally possible (such as Sweden) media and advertisement businesses appear not to have been interested in creating further legal or economic clarity. The Swedish regulator, therefore, has decided not to get stuck with a complicated, technical task for which they are not funded, in a field where both they - and seemingly the rest of Europe - lacks expertise.

Would a Charta help bring clarity in the legislation for these markets, help us understand the market forces at play or help us build on existing legislative frameworks that have until now been under-exploited in the struggle to guarantee citizens' rights as consumers and individuals? It’s doubtful. The generic nature of the language that such a document necessarily must contain could only cause further confusion, and at worst would distract legislators and policymakers from resolving the outstanding issues for regulators and enforcers of the already existing laws.

I do not make this reflection as a lawyer, or a technical expert, or even as a founder of a Swedish digital rights NGO, but as a former legislator and as a citizen. Authoring a Charta might be a welcome distraction for rulers who have less interest in discussing why they are unable to uphold the contracts they have already made with their citizens. To play on a hopefully not too unfamiliar internet meme, which could well describe the interest of legislators and policymakers in the production of a Charta: why work when you can organise a meeting?

I would like to propose a strategy for digital rights that is the reverse: why organise a meeting when we can work?

Footnotes

1. http://www.emeeting.europarl.europa.eu/committees/agenda/201612/LIBE/LIBE(2016)1205_1P/sitt-3521176

2. Politico (13 Nov 2016) France to extend state of emergency. http://www.politico.eu/<wbr />article/france-to-extend-<wbr />state-of-emergency/</a></fn>

3. Cf. the Stop Killer Robots campaign: https://www.stopkillerrobots.org/

4. The Independent (4 Oct 2016) British troops to be made exempt from European human rights laws during combat http://www.independent.co.uk/news/uk/politics/british-troops-shielded-legal-action-european-court-human-rights-iraq-afghanistan-a7343551.html

5. ECLI:EU:C:2016:572, Opinion of the Advocate General in cases C-203/15, C-698/15, http://curia.europa.eu/jcms/jcms/p1_216230

6. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680646af8

7. Swedish government, Proposition 2016/17:29. http://data.riksdagen.se/dokument/H40329

8. ECLI:EU:C:2016:612, Verein für Konsumenteninformation v Amazon EU Sàrl, Request for a preliminary ruling from the Oberster Gerichtshof, Case C-191/15.http://curia.europa.eu/juris/liste.jsf?num=C-191/15

9. Cf. Art 15, directive 95/46/EC.

10. Cf. Section VIII, directive 95/46/EC.

11. http://www.forbrukerradet.no/siste-nytt/fitness-wristbands-violate-european-law

12. http://www.pts.se/sv/Nyheter/Internet/2016/Operatorer-ska-behandla-internettrafik-likvardigt-enligt-beslutsforslag-fran-PTS/

13. For a definition of these services, consider Article 1.1.b of Regulation No. 2015/1535. http://data.europa.eu/eli/dir/2015/1535/oj

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