Why we should support the “European Charter of digital fundamental rights”
On 1 December 2017 the “Charter of digital fundamental rights of the European Union” was published by 27 initiators. This quickly started a fierce debate about the sense and nonsense of such a document. Critics believe that the text is a juridical disaster, poorly drafted and producing numerous contradictions. Still it is unique in reaching out to engage with much broader audiences than any other digital charter did before. And we should engage because European values matter for everyone as they shape the rules for a digital world.
Oh no, another one!
That was our initial thought when we heard about the Charter of digital fundamental rights of the European Union. Over the last years there have been many Charters of Digital Rights or other attempts to formulate a normative framework of how we should be living in a world going digital. Not enough, we even have been involved in drafting one on our own. Some of the texts have become documents that are regularly referenced by activists, others turned into self-imposed principles for progressive organisations. There are some outstanding examples of how far normative frameworks can go. Brazil demonstrated with the establishment of the “Marco Civil da Internet” (Civil Rights Framework for the Internet) how a long inclusive process of crowdsourcing and participation can lead to enactment as hard law.
So far, the European Charter was neither as inclusive nor is it anywhere close to becoming a legally binding document. We see it as a first step, a form of petition. The authors of the Charter include well-known experts from business, academia, civil society and politicians across a surprisingly wide range of political parties. After initial publication of the Charter, it quickly gained support of over 1000 signatures. The Charter is, however, also harshly criticised. Prominent voices from the digital community and legal experts are denouncing the text.
Just the beginning
We appreciate this broad and controversial debate sparked around the Digital Charter. We don’t expect a perfect consensus as result, but rather a rough understanding that reflects the certainly heterogeneous perspectives of the multiple voices the different stakeholders want to express. The text of the Brazilian Civil Rights Framework for the Internet, though seen controversial, did change completely between its initial discussion in 2009 and legal enactment in 2014.
But before it can become a truly European initiative, we would like to see the group of mostly German authors to build on existing efforts, for example Italy’s 2015 Declaration of Internet Rights that went through public consultation online and offline with several stakeholders over a period of five months. The perspectives from other European member states will need to be integrated as soon as possible.
Some commentators argue there is no need for a Charter as existing laws are sufficient. We don’t think so for a number of reasons, not only technological developments such as big data and artificial intelligence (AI). The existing normative frameworks need to address the ever growing tension between national character of legislation and the global character of the internet, a question that was asked for example at the Global Internet and Jurisdiction conference in November 2016 in Paris, as well as being heavily discussed within global trade regimes.
As policy fields are increasingly interdependent within the global digital realm, it is time to break out of traditional vertical policy silos: The internet brings together economic affairs, human rights, media policy, international relations, development policy, trade policy, consumer protection, anti-trust, technical standards, to name just a few. That’s why it is high time for a broadly shared consensus among stakeholders representing our values.
The legal experts criticising the Charter as a juridical disaster should stop complaining about the bad craftsmanship of the text and help translating the values represented in the Charter into a workable legal architecture, and iron out contradictions. Among the existing contradictions our biggest concern is the ambiguity left between free speech and censorship. European legal norms embody a clear commitment to free speech, so we can remain hopeful that this ambiguity will be resolved eventually. Rather than revolving around further details and shortcomings, we would like to point to the bigger picture of what potentials a European Digital Charter can have.
Europe’s third way in the digital world
From an international perspective, the Charter is an impressive text. The 23 articles address topics that in many other contexts would be highly controversial or even forbidden. If you ever have followed the negotiation of an international resolution that deals with the digital world you will appreciate the boldness of the Charter.
From a global bird’s eye view, we observe two dominant paradigms: one is represented by US policies and could be called the “Internet for companies”. The state taking a laissez-faire approach with the strong belief that the market forces will sort things out, including a Schumpeterian disruption narrative to justify monopolies, and easy paths to monetise citizen’s data. The second dominant view, and diametrically opposed to the first one, can be seen in China’s policies – the “Internet of the state”. Having governmental gatekeepers intervene in business and civic activities, China is practicing internet fragmentation motivated by industrial policy and control of the public sphere. This is where the Charter of digital fundamental rights of the European Union has the potential to step in and offer a third way, shifting power from businesses and the state towards us, as users, and citizens while preserving the free and open character of the internet. That is a vision for a genuine “Internet of the people”. Therefore, we support the Charter and encourage citizen of Europe to engage and shape an information society according to our shared values.