The Declaration on European Digital Rights and Principles: A First Analysis from Digital Constitutionalism

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Article already published on The Digital Constitutionalist (Digi-con).

The Declaration on European Digital Rights and Principles: A First Analysis from Digital Constitutionalism

“We believe in a human-centred digital transition. This is about who we want to be, as
Europeans. To capture this better, we will formulate a set of digital principles. Such as
access for all to the Internet; a secure online space; the right to learn digital skills;
algorithms that respect people; the protection of children online. These important
principles will complement the legal rights that already protect Europeans online like the
protection of personal data or the freedom of expression.”

President Ursula von der Leyen, Leading the Digital Decade, Sines, 1 June 2021

The European Union has made another step in the path of European digital constitutionalism. The Commission has launched a declaration of rights and principles in the digital age, which defines a human-centric approach guiding the European digital transition. The declaration aims to put people at the centre, foster solidarity and inclusion, freedom of choice, participation in the digital public space, safety, security and empowerment, and sustainability. The goal is also to underline that rights and freedoms should be equally respected online as they are offline. This point seems to go towards breaking the gap between the online and offline world, thus recognising the relevance of the online dimension.

This declaration is more than a new political intent. Although this move could just be considered as a manifesto of the values that the EU wants to protect in the digital age, the declaration is part of a broader constitutional picture. It is an expression of the consolidation of digital constitutionalism, thus underlining how the digital future of the EU will likely be based on a digital compass guided by European (constitutional) values. As stressed by Commission President Ursula von der Leyen: “We embrace new technologies. But we stand by our values.”

Therefore, the Commission looks at European values as the beacon of the path to the digital decade. The declaration will serve as a reference for policymakers to define a sustainable approach to protect rights and democratic values in the digital age. Additionally, and even more importantly, the declaration will also enhance the primary role of the European Charter of Fundamental Rights in the digital age. It will provide new essentials to interpret its delicate role in triggering innovation through fundamental freedoms while protecting rights and democratic values.

Besides, it cannot be excluded that courts, particularly the European Court of Justice, will refer to this instrument as a creative source of constitutional interpretation of the Charter, also considering the judicial activism shown by the CJEU in these years. In other words, this instrument could provide another interpretative judicial angle to find a common interpretation of the many legislative instruments the EU is introducing to address digital challenges.

This process indeed touches the roots of European (digital) constitutionalism. Even if this approach could appear disproportionately oriented towards the protection of rights and freedoms, the characteristics of European constitutionalism will counterbalance this trend. There is no space for absolute protection, leading to a constitutional annihilation of rights and freedoms, but only for a constitutional balance among conflicting interests. This declaration should be read as a restoration of a constitutional equilibrium that, in the last decades, has seen economic freedoms prevail over fundamental rights based on neoliberal narratives. European values indeed do not only protect rights but also enhance the internal market and freedoms. The key is in between, thus leading to a sustainable constitutional approach in the digital age.

Moreover, this declaration also provides constitutional food for thoughts for the Member States, which have already proposed introducing a digital bill of rights, such as Italy and Spain. In these years, Member States have not always waited for the EU to address digital challenges but have followed their path to tackle, for instance, hate speech and disinformation, like in the case of Germany and France. Therefore, the declaration as a new political statement raises questions about European integration and the role of constitutional identities. Put another way, the declaration constitutes an interesting case to consider the role of common constitutional traditions in the digital age and how European constitutional values are aligned with Member State constitutional identities. The case of access and connectivity is an interesting example of how the Member States have addressed the constitutional questions of the right to internet access, ensuring high-quality connectivity at the national level.

However, the relevance of this declaration is not just internal but is also firmly connected with the expression of EU digital sovereignty. The declaration expressly underlines its goal to become a global benchmark for many emerging societal and ethical questions that digital transformation brings. This approach reflects the intention of the EU to provide a global model for the protection of rights and freedoms in the digital age.

The EU has already shown its ability to influence global dynamics; scholars have named such attitude the “Brussels effect”. The EU has started to build its narrative about digital sovereignty based on ensuring the integrity and resilience of our data infrastructure, networks and communications aimed to mitigate dependency on other parts of the globe for the most crucial technologies. This approach has also extended to the regulation of the digital environment. The adoption of the General Data Protection Regulation has been a milestone in constitutionalising European data protection after the Lisbon Treaty. Likewise, the Digital Services Act is another relevant example, showing the shift of paradigm in the EU towards more accountability of online platforms to protect European democratic values. These measures could be considered an attempt to adapt the digital economy to European goals.

The European declaration of rights and freedom provides an opportunity to examine the consolidation of European digital constitutionalism. Even if this is just a political approach, it contributes to affirming the European model at the European and the international level. The primary challenge for the EU will be to ensure a sustainable system that brings together the constitutional identities of the Member States and the influences coming from other competing models for governing the digital age.

 

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About Author

Giovanni De Gregorio is PhD student in Constitutional and Public Law at University of Milano-Bicocca and Academic Fellow at Bocconi University. He has been a visiting PhD student at the Oxford Centre for Socio-Legal Studies at the University of Oxford working with the Programme in Comparative Media Law and Policy. He is also visiting fellow at the Center for Cyber Law and Policy at the University of Haifa. His research activities focus Digital Constitutionalism at the intersection between Constitutional law, Internet law, Privacy and Data Protection law.

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