Editorial of October 2022

By Editorial Team 

Digital citizenship and technological sustainability (CitDig) –
Jean Monnet Centre of Excellence

As of October 1, 2022 the University of Minho (UMinho) is running a “Jean Monnet Centre of Excellence” coordinated by Alessandra Silveira (Editor of UNIO’s blog) entitled “Digital citizenship and technological sustainability: achieving CFREU effectiveness in the digital decade” (CitDig) under the Erasmus+ Programme. UMinho was deemed to be in a position to investigate pressing issues around the digital decade, advancing and developing synergies among various areas. What is the background and rationale of the CitDig Centre of Excellence?

Digitalization is understood as the way in which many domains of social life are restructured around digital communication and media infrastructures – or the way in which these media structure, shape and influence the contemporary world.[1] In the Communication “2030 Digital Compass: the European way for the Digital Decade” [COM(2021) 118 final], the European Commission (EC) notes that digital technologies and services must respect the values intrinsic to the “European way”. Furthermore, the human-centered, secure and open digital environment should enable people to enforce their fundamental rights.

In this vein, and to increase everyone’s knowledge of the Charter of Fundamental Rights of the European Union (CFREU), the EC has been publishing reports on its application since 2010. The 2021 annual report is the first to follow a new approach announced in the “Charter Strategy” to strengthen the implementation of the CFREU [COM(2020) 711]. It is entitled “Protecting Fundamental Rights in the Digital Age” and was published on 10 December 2021 [COM(2021) 819 final], in line with the EC’s strategic focus on the digital transition, and shows how political, societal and economic developments in this digital age can affect a range of fundamental rights at the same time. 

In its 2021 annual report, the EC notes that private actors, such as online platforms, define their own terms and business models without public instructions as to the type of the content they would be obliged to host. Within this context, they could take measures that significantly affect users and their rights – and there is not always a legal remedy available against such private decisions that would allow for such decisions to be balanced against individuals’ rights and legitimate interests and ensure a certain degree of predictability.

As some authors have noted, platforms have assumed functions that are intrinsically connected to the exercise of public power: a quasi-judicial function through the balancing of fundamental rights (content moderation), a quasi-executive function through the enforcement of those decisions (content removal), and a quasi-legislative function through the unilateral drafting of the rules for the exercise of the above-mentioned powers.[2]

This challenges EU to join constitutional forces and make the digital decade an opportunity for the fundamental rights protection – and for the EU constitutional pluralism.[3] While the EU initial steps were focused on facilitating the functioning of the single market for digital services, a series of judicial developments marked a shift from a market-oriented approach to a fundamental rights perspective. Hence, under the heading of the “2030: Digital Decade”, strengthening people’s awareness on the CFREU – as well as empowering civil society organisations, justice practitioners and academic communities – is an imperative for the survival of democracy and the rule of law in the EU.

But who are, in fact, the addressees of the provisions of the CFREU? Article 51(1) CFREU highlights the vertical effect of its norms – that is, their relevance to relations between the authorities exercising public power and individuals or legal persons –, apparently excluding their applicability to relations between individuals or legal persons. It is true that the horizontal effect of fundamental rights is not accepted in the vast majority of Member States’ Constitutions – even though, through the infra-constitutional regulation of private relations between individuals, fundamental rights eventually have a horizontal effect in some areas.[4]

Why is the horizontal effect of the EU fundamental rights so relevant to the digital citizenship? Because today private actors, such as online platforms, define their own terms and business models (as we mentioned above), without the desirable transparency, accountability, explainability and reasonableness of processes and decisions. It is indispensable to ensure that the exercise of power, particularly by private entities which dominate the digital environment, is limited by an adequate framework of legal norms.

The value of the rule of law (Article 2 TUE) underlies the defence of citizens against any power, submitting power to the law. This challenges EU to join constitutional forces and to make the digital decade an opportunity for the fundamental rights protection in a “Union based on the rule of law”. In this context, sustainability is shaped as a matrix concept of the digital decade, defining the conditions and the assumptions for legal regulation in a context of permanent technological evolution.

CitDig intends to demonstrate that the digital transition requires that all those involved in the development and commercialization of digital tools must assume legal responsibility for the quality of the technology they produce at all stages of the process. That is, sustainable technologies – or a fairly secure, equitable, and open digital environment. At the present time, it is indispensable to ensure that the exercise of power, particularly by private entities which dominate the digital environment, is limited by an adequate framework of constitutional principles and rights.  In this sense, the EU constitutional pluralism could help to better address the challenges ahead, in particular to ensure checks and balances on surveillance measures, and more generally how to effectively enforce norms to protect fundamental rights in the digital environment.

CitDig aims at scientifically scrutinizing and raising awareness on the set of principles and rights that could shape the normative responses to the challenges of digital environment – and whether and how they have been translated into EU proposals, law and policies. Along this path, CitDig intends to test how the EU is implementing the CFREU to overcome the digital challenges and safeguard and promote people’s fundamental rights, in order to make the CFREU a compass for the digital decade. This will be done in line with the “key aspects” identified by the EC where challenges to fundamental rights arise due to the use of digital technology: i) tackling the challenges of online content moderation; ii) safeguarding fundamental rights where Artificial Intelligence is used; iii) addressing the digital divide; iv) supervising digital surveillance.

CitDig team has extensive experience in working together. Three CitDig staff members integrate the Directive Commission of the Master in EU Law of UMinho (Alessandra Silveira, Pedro Froufe, Joana Covelo Abreu) and the Editorial Team of the UNIO blog. Moreover, CitDig team features two renowned Portuguese scholars on digital technologies: Francisco Andrade (jurist) and Paulo Novais (computer engineer), both of them integrating the Directive Commission of the Master in Law & Informatics of UMinho (the latter was President of the Portuguese Association for Artificial Intelligence – 2016-2019). Moreover, Carlos Abreu Amorim, as well as being a researcher, has acted as policymaker (former member of the national Parliament responsible for GDPR’s implementation in Portugal). 

CitDig is a step further in legally conceptualizing technological sustainability, since, with previous Jean Monnet actions, UMinho has become a national and international focal point for the EU digital regulation studies, aggregating best practices and external scholars – such as those that now integrate CitDig, namely Francisco Pereira Coutinho (University Nova of Lisbon, Portugal) and Alexandre Veronese (University of Brasília, Brazil).

Finally, CitDig can contribute towards achieving the EC strategic priorities, namely to invest i) in a Europe fit for the digital decade, ii) an economy that works for people, and iii) a new impetus for European democracy – and, in doing so, being able to promote the European way of life and to enhance the visibility of what the EU actually stands for and what it intends to achieve.

[1] Cf. Maurice Adams and Corien Prins, Digitalization through the lens of law and democracy, Corien Prins, et al. (ed.), Digital democracy in a globalized world, Edward Elgar Publishing, Cheltenham UK/Northampton USA, 2017, p. 6.

[2] On this subject see Giovanni De Gregorio, Digital constitutionalism in Europe. Reframing rights and powers in the algorithmic society, Cambridge University Press, 2022.

[3] On this subject see Miguel Poiares Maduro, Three claims of constitutional pluralism, Matej Avbelj and Jan Komárek (eds.), Constitutional pluralism in the European Union and beyond, Hart Publishing, 2012.

[4] Cf.  Leonard Besselink, General Report, Julia Lafranque (ed.), Reports of the XXV FIDE Congress – Tallinn 2012, vol. 1, Tartu University Press, Tallinn, 2012, pp. 91 and 92.

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One thought on “Editorial of October 2022

  1. Pingback: Digital citizenship and technological sustainability (CitDig) – Jean Monnet Centre of Excellence - JusGov

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