Editorial of February 2023

By Miguel Pereira (Master’s student in European Union Law at the University of Minho) 

Truffle hunting: finding meaning in the European Declaration on Digital Rights and Principles for the Digital Decade

Truffles are small, hard to find and delicate fungi that tend to grow around tree roots. Hunting and extracting them requires expert knowledge passed down through generations, persistence, attention to details and, usually, the helpful nose of a well-trained dog. For a jurist, sifting through the ever-growing body of declarations, communications, positions, resolutions and decisions of the EU institutions often requires the same level of dedication and attention to detail, in an effort to find meaning and footholds in what at first sight can be chalked up to pure political jargon – in essence, an effort to find truffles.

In December 2022, the EU institutions issued two instruments that lay out their vision for a Digital Europe and the principles that should govern its development: the Digital Decade Policy Programme 2030 (“Digital Decade Programme”) and the European Declaration on Digital Rights and Principles for the Digital Decade (“Declaration on Digital Rights”). Both instruments have been in the works for a while and, even though falling short of expectations due to their limited legal relevance, they’re still noteworthy as a summary of the EU’s digital ambitions, priorities and concerns. They also embody a change of paradigm that legal scholarship has strived to identify and document over the past few years: a refocusing of digital policy around the protection of fundamental rights and the adoption of a digital constitutionalist stance in the development of said policy and legislation.

Both documents find their inception in the Commission’s 2021 Communication 2030 Digital Compass: the European way for the Digital Decade, in which the Commission laid out its digital policy vision for the current decade. Based on this document, the European Parliament and the Council laid out objectives to be achieved by 2030 in the Digital Decade Programme. This programme includes general objectives which are complemented by specific and detailed targets as well as a monitoring and cooperation mechanism between Member States and between Member States and the Commission, creating the possibility for Member States to set up European Digital Infrastructure Consortia (“EDIC”) to implement multi-country projects (notably, membership in these EDIC can be extended to other entities, including third states and private entities). While the Digital Decade Programme is a legislative instrument, its core contents are essentially policy goals which the EU institutions, in cooperation, should “support and achieve”.

In parallel, the Declaration on Digital Rights was proclaimed by the European Parliament, the Council and the Commission and is a supporting document of a non-legislative nature. In fact, the EU institutions that proclaimed the declaration seem to have wanted to limit even its interpretative influence, stating in its preamble that “it has a declaratory nature and, as such, does not affect the content of legal rules or their application”. Additionally, the declaration, although calling for the promotion of its values in the context of other initiatives (particularly those involving third states) and the taking up of similar commitments by the industry, links these principles and rights to the execution of the Digital Decade Programme (something that can also be inferred from the title of the declaration: European Declaration on Digital Rights and Principles for the Digital Decade). If we consider the text of the Digital Decade Programme as well, the weight of the declaration remains unchanged, with the extent of the commitment being limited by Article 3 (2): “In cooperating to achieve the general objectives set out in this Article, the Member States and the Commission shall take account of the digital principles and rights set out in the European Declaration on Digital Rights and Principles for the Digital Decade”.

Notwithstanding that, the Declaration on Digital Rights and, for the purpose of our analysis[1], the Digital Decade Programme (in what concerns its interactions with the declaration), are not devoid of significance, particularly if we consider the values they espouse and the legal and policy context in which they are issued. Over the past few years, the EU has endeavoured to modernize its framework governing digital services, privacy and emerging technologies and along the way inscribed in these reforms what can be looked at as a body of over-arching principles with a constitutional and fundamental rights imprint – from the concerns with transparency, accountability and re-balancing of powers (between users and digital services providers) which the Digital Services Act (“DSA”) puts forward, to the objectives of ensuring security, privacy and control over personal data usage contained in the General Data Protection Regulation to, lastly, the focus on an human-centric and bias-conscious development of artificial intelligence (“AI”) technologies that the Proposal for an Artificial Intelligence Act adduces to.

The core tenets of these principles seem to have been distilled into the Declaration on Digital Rights and, outside the technical scope of the legislation which sets them out, gain additional significance, rather, additional dignity, as something akin to fundamental rights. Reviewing the text of the declaration, this scenario becomes clearer: the declaration calls for transparency in the use of AI in the workplace, including notifying the workers of its use, and ensuring that human intervention is guaranteed in important decisions affecting them (Chapter II); outside the work environment, the declaration calls for the promotion of the development of human-centric AI systems, ensuring human supervision of outcomes affecting people’s safety and fundamental rights, and an adequate level of transparency regarding the use of algorithmic and AI systems which should be developed on the basis of datasets that avoid discrimination (Chapter III). In what concerns digital services and privacy, the same holds true: the declaration calls for greater “interoperability, transparency, open technologies and standards” in order to empower consumers vis-á-vis service providers (decreasing the lock-in effect and increasing competition) [Chapter III]; in line with the concerns addressed by the provisions of the DSA on mandatory information, notice and action and redress mechanisms, the declaration calls for a “neutral and open Internet where content, services, and applications are not unjustifiably blocked or degraded” (Chapter II); as for privacy, the declaration reaffirms the contents of this right and the right to data protection, as well as portability rights, with the signatories committing to ensure that “everyone has effective control of their personal and non-personal data” and the “possibility for individuals to easily move their personal and non-personal data between different digital services” (Chapter V). The same notes can be found in the general objectives laid out in the Digital Decade Programme, which seek to promote “a human-centred, fundamental-rights-based, inclusive, transparent and open digital environment where secure and interoperable digital technologies and services observe and enhance Union principles, rights and values and are accessible to all, everywhere in the Union” [Article 3 (1)(a)].

These principles resonate at a more fundamental level, at a constitutional level. In fact, transparency, respect for fundamental rights, and the limitation of powers are traditional aspects of constitutional law. Transparency as pre-requisite for the exercise of fundamental rights which in turn contribute to the limitation of powers. These are also the core elements of digital constitutionalism which is defined by Edoardo Celeste as an “ideology that adapts the values of contemporary constitutionalism to the digital society”, not as a set of “normative responses to the challenges of digital technology, but (…) rather the set of principles and values that informs, guides and determines the generation of those responses”[2]. Along the same lines, Giovanni De Gregorio identifies as the primary mission of European digital constitutionalism the limitation of “abuse of powers by framing and extending constitutional values in the algorithmic society”[3]. In this sense, digital constitutionalism seeks to adapt constitutional values and fundamental rights to the digital environment, clarifying the new facets they assume in this new arena and extending their reach beyond the traditional vertical effect (vis-á-vis the state). We can find traces of this intent along the Declaration on Digital Rights and a clear statement in Recital 3, where the signatories clarify that “the time has come for the EU to spell out how its values and fundamental rights applicable offline should be applied in the digital environment”.

And so, we have found our truffle. The Declaration on Digital Rights, while being an instrument with limited relevance from a purely legal perspective, marks a moment of acknowledgment by the Member States and the EU Institutions of the constitutional nature of some of the issues brought about by digitalization and of the pressing need for a constitutional response. While the EU has strived to implement safeguards through sectoral and technical legislation, those safeguards should be afforded greater significance, in line with the constitutional nature of the concerns they seek to address. Notwithstanding that, the Declaration on Digital Rights falls short of bringing these values to the whole of the EU legal order, remaining within the realm of political ambitions and commitments. It is unfortunate that the Member States and the EU Institutions failed to take this step and it seems that the effort of building and clarifying the content of these digital constitutionalist principles will be left up to legal practitioners, the courts and academia.

While there are many brilliant minds contributing to this effort and pushing forward notions of a constitutionalism fit for the digital challenges, there is an uncomfortable truth that should be called to attention: it shouldn’t be this hard to find meaning in the commitments Member States and the EU institutions assume; we should be able to take in the whole tree, instead of just looking for truffles.  

[1] The Digital Decade Programme sets out a policy programme for the present decade setting concrete targets and legal mechanisms of cooperation and oversight, with a special focus on sustainable development, meriting a review of their own which, however, falls outside the scope of this blogpost.

[2] Edoardo Celeste, ‘Digital Constitutionalism: A New Systematic Theorisation’, International Review of Law, Computers & Technology 33, no. 1 (2019): 77, https://doi.org/10.1080/13600869.2019.1562604.

[3] Giovanni De Gregorio, Digital Constitutionalism in Europe: Reframing Rights and Powers in the Algorithmic Society, 1st ed. (Cambridge University Press, 2022), 25, https://doi.org/10.1017/9781009071215.

Picture credits: Photo by Pixabay on Pexels.com

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