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Mainstream, VOL LIX No 2, New Delhi, December 26 2020

Towards a New Digital Rights Paradigm: Emerging Concerns in Europe and Response of the European Union | Aakansha Natani

Saturday 26 December 2020

by Aakansha Natani *

Abstract The 21st century began with an intensification of technological advancements in the internet based technologies and as history stands witness, the human race is bound to make further leaps in the development of the same through the passage of this century. Internet has become an integral part of the daily lives of billions of people all over the globe and this is only going to increase overtime. The new set of concerns is emerging all over the world regarding individual rights on the digital platforms. At the same time, the loopholes in e-governance initiatives are also being acknowledged and new policy frameworks are being introduced to digitalise democracy and democratise the digital spaces. In this context, this paper attempts to examine the emerging concerns on these issues in Europe and policy initiatives being taken by the European Union to address these concerns with a rights-based approach leading towards a new digital rights paradigm.

Keywords- Citizen Rights, Digital Democracy, European Union, Internet

The digital revolution has changed not only the dynamics of trade and business all over the world, but also brought a lot of changes in the socio-political sphere of human life. The digitisation of the democratic processes is happening, whether we plan for it or not (Pohoryles et al 2017) and it has led to a number of shifts in the political culture of Europe. The new sets of demands have emerged and the governments of the member states and different institutions of the European Union (EU) have responded well to this shift in the political culture and demands.

The European Union is a common project shared by all levels of government, all types of organizations and people from all walks of life (White Paper 2005). The Treaty of Lisbon (2010) has put special emphasis on strengthening democratic elements both in offline and online spaces in the EU, and the EU has constantly been active to implement various aspects and dimensions of e-democracy in the EU institutions. It is also playing the guiding role for member states to establish more deliberative forms of democratic participation with the use of new media technologies.

From the beginning itself, the EU started to acknowledge that internet was becoming the main channel of communication amongst people and if utilized properly, it had huge prospects to enhance the democratic functioning. With its unlimited potential to reach out to people, internet had immense scope for the public institutions to reform themselves by incorporating principles of direct and accountable democracy. The EU, in various reports and policy documents, has also acknowledged the existence of ‘haves and have nots’ in European information society and aimed to bridge the gap between the two. It recognized that such inequalities existed in different regions of Europe and it was EU’s responsibility to build equal opportunity for all in the digital spaces.

Digitalising Democracy: Policy Initiatives by the European Union

The EU perceives the concept of digital democracy as a process which is additional, complementary to, and interlinked with traditional democratic processes. It is a tool to bring transformation not just in governance and people’s participation, but also in the idea and practice of citizenship. Since the beginning of 21st century, the institutions of the European Union have taken a number of initiatives to include digital participation policies in the legal framework.

In 2005, the Commission launched the Plan D [1] (Democracy, Dialogue and Debate). It was based on deliberative and collaborative idea of democracy and it aimed to strengthen legitimacy of the EU institutions with the help of digital media. The main idea behind this initiative was to build a European Public Sphere in which information and various tools of participation would be provided to the People so that they can feel attached to the union and gain ownership on the whole project. Many scholars have argued that through this plan, the EU adopted a truly democratic approach to discussions and dialogue in which its role would be restricted to financially assist the civil society organizations who are willing to conduct debates on European issues in the public. The key objective behind this was to build the trust of the people by making them realise that their opinion matters in policy making process of the EU. Eureval et al (2009) have also point out that this new approach of the Commission to financially support civil society organisations to conduct pan-European public debates and not to interfere in their structure and agenda-setting was surprising.

White Paper on European Communication Policy [2] (2006)highlighted that the citizens of the EU belong to wide range of social and cultural diversity, and the new communication policy must be able to deal with wide range of political opinions. In 2007, the Commission drafted another communication strategy recognizing the crucial significance of stronger communication with the people, not just by providing complete and comprehensive information on the issues being addressed by the European Union; but also by opening channels to involve the citizens in a constant dialogue process using new information and communication technologies.

The resolution on ‘European Broadband: Investing in Digitally Driven Growth’ (2010) by European Parliament declared that by 2020, all Europeans will have access to internet of above 30 Megabits per second (Mbps). The target for fast and ultra-fast internet access was chosen because of the potential central role it could play in economic revival through supporting innovation, as electricity and transport did in the history. Europe’s Digital Competitive Report [3] (2010) analysed the challenges in the agenda of digitally driven growth and found out that age and education are the two main factors that influence the online participation opportunities available to the EU citizens. The digital exclusion being caused by these two factors is further extended by skill deficit. The marginalized people also do not have enough financial resources to have basic equipment to be able to stay connected and participate regularly on digital platforms.

Launched in May 2010, the Digital Agenda for Europe [4] was aimed at the advancement of the economy of Europe by delivering sustainable socio-economic benefits from a digital single market. It not only highlighted the concerns on lack of digital literacy but also identified the emerging trust issues with new media technologies because of rising number of cyber crimes. It acknowledged the ‘missed opportunities in addressing societal challenges’ and recommended to invest more in digital skill building projects. The issues of intellectual property rights were also highlighted in this agenda along with concerns on data-breach and privacy in digital spaces. 

Democracy and Internet: New Digital Rights for Citizens 

The European countries have granted a number of rights to its citizens to safeguards their interests in the digital platforms. The National Digital Strategy of Malta [5] is appreciated all across the Europe for its right-based approach to protect the interest of people. In 2012, Malta released a White Paper which covered the digital rights to be granted through legislation to the citizens of Malta. It proposed four basic rights of the citizens. First was the right to access the Internet and it included the access to both structure and content. Second right was related to the equal access to information that is available on Internet-based platforms. Third was the right to share and impart the information with other people without any unnecessary restrictions. Last was the right to privacy over the Internet so that other fundamental rights of the citizens are not violated on digital platforms.

France is also playing a leading role in developing citizen-centric approach towards data and privacy. The process to draft French Digital Republic Act [6] began in 2015 and it was enforced in October 2016. It amended the French Data Protection Act of 1978 and enhanced the rights for individuals in digital spaces with special focus on protection of privacy and personal data on digital platforms. It also grants post mortem right to privacy by incorporating the right for individuals to control their post-mortem data. The other important rights granted by this act are right of self-determination on the use of personal data, right of access and rectification in certain cases, right to be forgotten and rights related to data portability. Citizens have also given a right to retrieve the entirety of their personal data in the systems of any online service provider (Dhont et al 2016). The bill has established the principle of net neutrality as well. Now the operators cannot discriminate in providing access to the network on the basis of services.

All across the Europe, there were constant demands from the civil society groups and citizens rights activists to build a common policy framework on Digital Rights of the Citizens. The EU, responding very well to this popular demand, issued a regulation covering all important concerns of citizens and granting them a new set of rights to protect their interest on digital platforms.The consultation and debates for General Data Protection Regulation (GDPR) [7] began in 2012 and it was approved by the European Parliament in 2016. It was enforced in 2018 with strict punishment for all those organisations that do not follow the guidelines. It established data protection as a fundamental right of the citizens of the EU and it addressed the growing concern of citizens on misuse of their personal data by the companies for profit making. It also addressed the rising trust deficit on new communication technologies because of increasing number of cyber-crimes (Schiopu 2018).

This regulation has been drafted with a right based approach. The citizens have been given the right to know who is collecting their data for which purpose. They also have a right to know that who will analyse this data and till when this data will be stored. Their consent has been made mandatory for the possession of private data. The security of personal data is now the responsibility of the organsiation that is collecting it and data breach can be punished with heavy fines and other punishments. In the case of child below the age of 16, consent of holder of parental authority is essential.

The EU has played a leading role in the world in this regard as such kind of rights at this scale have been granted for the first time to the citizens (Schiopu 2018). The citizens have the right to know everything about the processing of their personal data. They can obtain access to the personal data held about them. They can ask incorrect, inaccurate or incomplete personal data to be corrected. Another important and significant right is Right to Erasure, also called right to be forgotten. The users have been given the right to request the erasure of their personal data it’s no longer needed or if processing it is unlawful, although some restrictions related to legal proceedings and freedom of speech have been applied on this right.

One of the unique rights now available to EU citizens is Right to Rectification. Citizens also have the right to data portability and right to object from data possession as well. The restrictions that have been applied on all of these rights are mostly related to national security, defence and public security. Citizens have a right to lodge a complaint with a supervisory authority in case of violation of any of these rights. Member states have been given the right to lay down the penalties and other punishments in case any of these rights are violated. The right to judicial remedy against the supervisory authority is also granted by this regulation (Schiopu 2018). The GDPR has provided various new and intensified data protection obligations with the provisions for fine up to 20 million Euros. This has not only changed the approach of the companies towards data security located in the EU but also it has affected the companies worldwide because of its broad and transnational approach as this regulation is applicable on the organisations located outside of the EU as well.

The EU addressed the concerns on private data and digital footprint with GDPR and it has been widely appreciated by the people for its rights based approach. It is however being criticized also for adding restrictions to various aspects of online trade and business, but the EU has chosen to put the interest of people above the interest of corporate and that has been received with admiration by the citizens. The origin of the EU was based on the approach of free market with minimum restrictions and the new approach on data protection marks the shift in its role from custodian of economic interest to guardian of citizens’ rights. It is important to highlight here that the cases of data breach are still being reported from many member states even after the implementation of GDPR.

Taking this citizen-centric approach further in digital domain, the EU recently announced ‘Digital Services Act’ [8]and ‘Digital Markets Act’  [9] to encompass a single set of new rules applicable in all member states of the EU. The key objective of these acts is to create a safer and more open digital space for people and these policies have been designed keeping European values such as democracy, human rights, rule of law at its centre. The main goals of these acts, as stated in the policy documents, are “to create a safer digital space in which the fundamental rights of all users of digital services are protected” and to establish a level playing field to foster innovation, growth, and competitiveness, both in the European Single Market and globally” With these acts, the responsibilities of “users, platforms, and public authorities have been rebalanced according to European values, placing citizens at the centre.” The EU has also attempted to address the rising concern of trust-deficit with digital media platforms in these acts introducing sweeping new rules for all digital services, including social media, e-commerce services and other digital media platforms that operate in all member states of the EU.

Emerging Concerns on Digital Technologies and Response of the EU

With the rapid rise in the use of digital technologies in public and private sphere, a new set of concerns is emerging amongst the users which are now getting reflected in the political debates both in academia and policy papers. The demand for mechanisms to address these concerns is growing in electoral politics all across the Europe. To understand the dynamics of comprehensive changes in political culture, it is important to analyse the nature and scope of such concerns and demands.

First and foremost, the debates on right to privacy in contemporary times, which are based on new realities of digital spaces, have become the concern of utmost importance in democratic societies. The right to privacy has been long cherished human rights in modern democracies promoted by all reputed international organisations. Article 12 of Universal Declaration of Human Rights [10] provides that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Article 7 of the Charter of the Fundamental Rights of the European Union states that, “Everyone has the right to respect for his or her private and family life, home and communications.”

This right however is facing a lot of challenges in the digital age. The inbuilt surveillance mechanisms of digital technologies have led to the violation of these right on digital platforms (Goldstein et al 2018). The conventional exercise of this right by ensuring physical separation is no longer sufficient in the online spaces. It requires new set of legal and institutional arrangements to protect this right of the people. Citizens in Europe are becoming conscious of the fact that their activities are tracked on digital platforms for advertising and other purposes. Data collection, through hacking or simple data harvesting, has made it possible for the governments and commercial entities to collect information about the choices and activities of the users. The citizens are afraid that this information about their online behaviour might be used for their profiling for marketing or criminal purposes. Such profiling poses a threat to democracy as well, because political organizations might use the data of digital behaviour patterns of the citizens to send targeted information to influence their political opinions (Goldstein et al 2018).

This leads to another important and emerging concern about data breach being done for political, financial and criminal purposes. Tracking of digital footprint and profit-making through big data analysis have led to the rising concern on data protection on digital platforms. Article 8 of the Charter of the Fundamental Rights of the European Union provides the right to protection of personal data. The EU has also taken serious steps to control the data breach by implementing GDPR (Schiopu 2018), but cases of misuse or unethical use of personal data are constantly being reported in all countries of Europe. The serious impacts of such breaches on the private life of citizens have led to certain kind of unrest amongst people about the use of new digital technologies. Data breach can not only cause humiliation and financial frauds, but also lead to physical or psychological damage of the effected individual or group. In some cases, it might even pose a threat to life.

Along with revival of debates on right to privacy, some of the European governments are also being criticized for attempts to impose censorship on the name of security arrangements. Mass surveillance strategies which are built on artificial intelligence technologies are being questioned on the ground of human rights violation. Furthermore, the concerns on cyber security have increased in the past decade to a great extent. It is now becoming an important security issue and the EU is seeking the leading role of security actor in this domain (Hoffmann and Monaghan 2011).

Another emerging issue is fake news and misinformation on web based social media platforms. It has revived the debate about coexistence of accountability and transparency in the public sphere (Fox 2010). It has been highlighted by a number of studies that most of the abuses, fake news, hate speech etc. get generated and spread from anonymous accounts. The facility of sharing anonymous opinions on digital platforms is not consistent with the principle of transparency in the public discourse.

The demands for more users’ rights in digital spaces and stronger legislation to control cyber-crimes, both the same time, are being mentioned by the political parties in their election manifestos. It also includes the demands for quick and smooth digitalisation of public services to make it more convenient for the citizens. Parties have now started spending a significant amount on digital campaigning as social media has emerged as a strong platform to build and refute the political opinions. The scope for dominance on social media has led to the debates on electoral legitimacy (Tambini 2018) and demands for detailed rules and regulations to monitor this development are emerging.

There is a growing demand to protect human rights on digital spaces as well. The debates are mainly centred on threat to liberty, equality and dignity on digital platforms. From the very beginning, the EU supports the Right to information and Freedom of Expression in the digital platforms. The EU has acknowledged and attempted to address three kinds of deficits leading to digital divide. First is the skill deficit which stands for people not being aware of how to use new technologies to access public services. Second is the confidence deficit which is based on the lack of information and knowledge about how these technologies are beneficial for people. Third one is the trust deficit which is caused by the data breach and cyber crimes.

The contemporary debates are also centred on the principle of net neutrality. Net neutrality stands for idea that people and businesses must be allowed to have equal and open access to any content on digital spaces and no favour should be given to certain websites or applications over others by the Internet providers. The EU policy on Net Neutrality is criticized for being “tentative, often blandly rhetorical and, for the most part, focused on a narrow range of techno-economic matters” (Simpson 2016).

The question of citizens’ rights on digital media platform has become a political question now and its being reflected in electoral politics in many countries of Europe. The Five Star Movement (M5S) in Italy, founded by comedian Beppe Grillo and web strategist Gianroberto Casaleggio in 2009, has become a political party which has challenged the existing patterns of political participation with the maximum possible use of digital communication technologies. The founding principle of this movement was to demand the establishment of direct democracy with the help of ICT. It believes that the collective intelligence made possible by the Internet can replace the democracy which has now become an instrument to serve the corporate powers. The Pirate Party of Germany, founded in 2006, has also emerged as a popular platform for citizens to challenge the existing patterns of political participation. Along with direct democracy and digital communication, the key priorities of this party are the concerns of citizens on copyright, privacy and transparency.

The civil society groups all across the Europe are playing crucial role in raising the concerns of citizens on date privacy, surveillance, trust-deficits with digital media platforms etc. It has led to the rise of a new set of contradictory demands in Europe with reference to the role of state on digital platforms. The first issue of consideration here is related to protection of freedom of speech and other fundamental rights on the internet. The people expect state to take a proactive role in securing the rights of users on web based platforms. The second demand is related to the concept of digital footprint wherein the citizens want the state to regulate and control the inbuilt surveillance mechanisms of internet based technologies. Citizens are increasingly becoming conscious of the fact that the data of their digital behaviour might be used for financial, political or criminal purposes and thus are demanding that the government must enforce laws to protect their online privacy. The third set of demand is related to the role of governments in the digital spaces. The supporters of this demand expect minimum possible or no interference on the part of the state in the world of web as it might affect the ‘by default’ democratic nature of the internet. These demands are now being increasingly reflected in the ideological debates between the political parties as well.

Here it is important to highlight that data has become a means of production now, so naturally the question of ownership is going to arise. There are three important discourses that have emerged in this regard so far. The first discourse is individual-centric which argues that data is an inalienable part of human body while the other discourses argue in favour of ownership of state or market. The judgments delivered by Supreme Court of India in cases involving the question of Right to Privacy are based on the first discourse highlighting the need to protect fundamental rights of citizens on digital media platforms. The judgments on the issue of internet shutdowns have also reiterated concerns on the potential violation of Freedom of Speech and Expression guaranteed by the Constitution because of not-so-justified and frequent Internet shutdowns in various parts of the country.

The government however does not seem to be following this discourse in policy making on issues of data privacy and ownership which is evident from the submission it has given in the Court on issues of data breach and violation of Right to Privacy. The arguments given by the government such as “Aadhar card data is secure behind walls that are thirteen feet high and five feet thick” have received widespread criticism. The concerns related to privacy have emerged on Arugya Setu App as well and responses of the government on this issue are being widely criticized by the civil society groups working for protection and promotion of citizens’ rights. The new data privacy bill presented in 2019 is also being criticized to weaken user’s rights and strengthening the surveillance mechanisms and data nationalization on the name of privacy.

India is the largest democracy of world and number of daily internet users is constantly rising in our country. The role of internet in democratic processes and practices is also going to increase only. Internet has immense potential to strengthen the structure and functioning of democracy but public policy frameworks are required to explore this potential. Such frameworks need technological perspectives to develop user-friendly mechanism and democratic perspective to ensure basic ethos of democracy such as liberty, equality and justice in the process. For this purpose, policies adopted in Europe and challenges identified in implementing them could be used in developing the public policy frameworks to protect the rights of citizens on digital media platforms.

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(* Author: Dr Aakansha Natani, PhD, JNU, New Delhi, Assistant Professor, Department of Political Science, St Xavier’s College, Jaipur)

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