A Digital Magna Carta? The European Declaration of Digital Rights

On January 26, 2022, the European Commission published its proposal for a “European Declaration on Digital Rights and Principles for the Digital Decade”. The Declaration transposes fundamental rights of EU citizens into the digital sphere, building on previous declarations and on the EU Charter of Fundamental Rights. It also paints the “bigger picture” for many recent legislative initiatives in the EU by comprehensively codifying various specific principles that have already been guiding EU institutions in their efforts to create a “digitalized” legislative framework. Even though the declaration is a political declaration, and not binding legislation, it will still have an indirect effect on any company doing business digitally in the EU because future legislation will surely incorporate and be aligned with these new principles.

1. What’s in the Declaration?

The European Declaration of Digital Rights aims to transition the European Union into its “Path to the Digital Decade” (another EU proposal). In essence, the Declaration promotes putting people at the center of the digital transformation and embracing European values in the digital sphere. However, even the European Commission, as the author of the declaration, emphasizes its declaratory nature and that it “does not as such affect the content of legal rules or their application.”

In six short chapters, the declaration focuses on:

i. the role of human values, such as human rights and democracy, in a digital society;

ii. an inclusive and solidarity framework, uniting people and providing fair and equal access for everyone;

iii. promoting the users’ freedom of choice by preventing discrimination and by making algorithms and AI more transparent and accountable;

iv. creating a trustworthy and diverse online space that allows everyone to participate in democratic debate without censorship while stopping the spread of illegal content;

v. promoting safe standards that give users power over their data and protect children online; and

vi. matching the “Green Deal”, and ensuring that digital technology is sustainable and limited in its impact on the environment.

The three previous EU declarations, which the Declaration of Digital Rights now builds on, had already focused on eGovernment (Tallinn Declaration), Digital Society (Berlin Declaration), and Digital Democracy (Lisbon Declaration), but the new declaration would be the first one to focus solely on the fundamental rights of EU citizens in the digital sphere.

Substantively, much of the declaration mainly reiterates and adapts the Charter of Fundamental Rights of the European Union to a digital environment. However, the declaration also contains a set of entirely new commitments that are unique to the digital economy. Many of these are mainly “new” in the sense that they have not previously been codified – even though they have clearly already been guiding the Commission on past and ongoing legislative endeavors. So, for example:

• A key aspect of the declaration concerns the use of algorithms and AI. The declaration seeks to promote their transparency and ensure that they are based on “suitable datasets” to prevent discrimination. Furthermore, the declaration aims to prevent manipulation by “ensuring that technologies, such as algorithms and artificial intelligence are not used to pre‑determine people’s choices, for example regarding health, education, employment, and their private life.” These ideas already went into some of the provisions of the proposed EU Artificial Intelligence Act (see our Client Alert).
• In Chapter IV, the declaration strives for a precarious balance between (on the one hand) freedom of expression, open democratic debate, and plurality of opinions, and (on the other hand) the prevention of misinformation, the deletion of illegal and the prevention of harmful content. In a statement that many global tech providers will appreciate, the declaration rejects “general monitoring obligations”. Some of these ideas already went into the proposed EU Digital Services Act.
• Regarding the role of the Member States, the declaration requests “an accessible, secure and trusted digital identity” to be used for all bureaucratic endeavors (especially healthcare), universal access to “affordable and high-speed digital connectivity” and net neutrality. The latter two are also already a subject of existing EU legislation on the part of the European Electronic Communications Code (see our Client Alert) and the EU Net Neutrality Regulation.
• The declaration also appears to have taken some of its inspiration from France. The French Parliament recently introduced a special tax on digital services, which is reflected in the declaration’s demand that “all market actors benefiting from the digital transformation assume their social responsibilities and make a fair and proportionate contribution to the costs of public goods, services and infrastructures.” Similarly, France introduced a “right to disconnect” for employees (i.e., not to be contacted after working hours); while the declaration aims at “ensuring that everyone shall be able to disconnect and benefit from safeguards for work-life balance in a digital environment.”
• The declaration also does not ignore the economic framework of the digital economy and its biggest players. It envisages clear definitions of the “responsibilities of platforms, especially large players and gatekeepers” and targets social media platforms with a demand that “everyone should have access to technology that aims at uniting, and not dividing, people.” This corresponds to the content moderation rules enacted in the Member States and proposed under the EU Digital Services Act, as well as to the rules for gatekeeper regulation proposed under the EU Digital Markets Act. Finally, the declaration addresses the issue of one’s digital legacy, another topic especially relevant for social networks, but also all other digital market actors.

2. What does that mean for companies doing business in the EU?

The declaration first and foremost only declares an intention and has no binding legal effect, neither between the EU bodies, nor between the Member States. It also does not confer any direct obligations or claims upon EU citizens or businesses. The declaration merely states the “shared political commitment” of the three future signatories: the EU Commission, European Parliament, and Council. It is thus in no way a binding enshrinement of fundamental rights. Nonetheless, it can be expected that the declaration and its principles will become an important guideline for future EU legislative initiatives. The same will apply in respect of the EU Member States for which the declaration will become a (political) commitment within their own competencies through representation by the EU Council.

Beyond that, the Commission aims for a bigger role for the declaration: As “a reference for businesses and other relevant actors when developing and deploying new technologies,” a tool to “guide policy makers,” and a basis to foster “responsible and diligent action by all digital actors, public and private.” For the time being, however, it only serves to hold the bodies of the European Union to their own commitments. In the future, the declaration could live up to that role if its principles are picked up and implemented in subsequent binding national or EU legislation or if market actors implement these principles on their own initiative.

3. What’s next?

Next, this joint solemn declaration will be discussed by the European Parliament and the European Council before they, together with the European Commission, will likely sign the declaration in summer 2022.

The Commission further proposed an annual report on the “State of the Digital Decade” as a monitoring exercise. Part of this report will be an annual “Eurobarometer”, inviting EU citizens to voice their perception of the actions and measures. Together with information shared by the Member States, the Commission will compile the report and recommend to the Member States actions, measures, and further commitments to implement the declaration. Over time, this should evolve into a regular dialogue and to the development of best practices for transposition.

The Commission also indicates that these best practices will avoid “the need to resort to infringement proceedings later on” if Member States do not sufficiently observe the declaration. This seems to contradict the non-binding nature of the declaration. The Commission may thus have further legislative instruments in mind to specify the commitments of the declaration or it may envisage a different nature of the declaration in the future – either of which will remain to be seen.