The Strength of Digital Rights in the European Union

By Evan Flynn

Abstract

This review delves into the strengths of the European Union’s (EU) digital rights apparatus, evaluating its strengths and weaknesses. It discusses the two major digital rights addressed by the EU: the digital rights to privacy and freedom of speech. It reviews the literature dealing with these rights and identifies strengths and weaknesses in the European legal framework regarding these rights. Ultimately, I conclude that although the EU has some minor weaknesses in its digital rights framework, its citizens enjoy a robust set of digital rights. 

How strong are the digital rights of European citizens? In an age where the lives of people across the world are increasingly dominated by the internet, it is important to ponder whether their rights on the internet are being respected by governments and corporations. Because of the internet’s prominence, there is no shortage of literature on this issue. In this piece, I will focus on two major digital rights: the right to privacy and the right to freedom of expression. Overall, the literature elucidates the strength of European digital rights with respect to these two issues. 

The literature emphasizes the strength of the EU’s digital right to privacy. For example, Calzada and Almirall stress how the European Union, whose system is not perfect, has a much stronger digital right to privacy compared with polities such as those of the United States and China: “In contrast [to the US and China], Europe is focusing on the attempt to start from the bottom-up to build a truly European model – one, that is sustainable, locally driven, regionally rooted and inclusive – while trying to maintain its lead” (Calzada & Almirall, 2020, p. 136). In other words, Calzada and Almirall illustrate that in contrast to other great powers, the EU is attempting to regulate private entities instead of letting them have autonomy when it comes to the private data of online users. Additionally, authors like Pfisterer have found that the Court of Justice of the European Union (CJEU) has strengthened the right to data privacy over the years using multiple court decisions: “In recent years, the CJEU has relentlessly strengthened the protection of the fundamental rights to privacy and protection of personal data as contained in the Charter of Fundamental Rights of the European Union” (Pfisterer, 2019, p. 722). 

Despite the strength of European data privacy rights, the literature also acknowledges that European digital privacy rights are still lacking. For example, Pfisterer, although acknowledging the strength of internet privacy rights, concedes that the rights could still be strengthened. For example, Pfisterer writes that “a company can, indeed, rely on the right to privacy, or more precisely, the combined ‘right to respect for private life with regard to the processing of personal data’ introduced in that decision, provided that the company name identifies one or more natural persons – such as Dell or Daimler” (Pfisterer, 2019, p. 729). In other words, if a company conducting business in Europe does not bear the name of a natural person, it is not granted the same digital privacy rights as a company that is named after a natural person. In addition to their concern about corporate privacy rights, Pfisterer also expresses concern about how the EU digital right to privacy is not an absolute right and how the “essence” of the right is unclear (Pfisterer, 2019, pp. 731–732). Another author, Vanberg, contends that the General Data Protection Regulation or GDPR (legislation that was enacted to strengthen European data rights) was a step in the right direction but is still inadequate (Vanberg, 2021, pp. 52–53). Firstly, Vanberg discusses how the law is hard to enforce and that there is a disparity between larger states (like Germany and France) that can easily enforce the law and smaller states that cannot (Vanberg, 2021, p. 67). This means that not all EU citizens will have equal access to data privacy. Moreover, Vanberg mentions how the “GDPR does not and cannot fully address the imbalance of power” between platforms and users and how technological advancement may make certain provisions of the GDPR redundant over time (Vanberg, 2021, pp. 68–71). In sum, we can see that although the EU has a robust legal system regarding digital privacy rights, it can still improve in certain areas. 

The literature also investigates the strength of European online freedom of speech. Hong contrasts the American conception of freedom of speech with that of Germany, arguing that Americans have a more liberal approach to freedom of speech while Germans see it as constrained by the right to “honor or dignity” (Hong, 2022, p. 78). Consequently, Americans might see German regulation of online speech as oppressive while Germans may have no issues with it because they welcome government regulation of hate speech. Overall, this greater degree of regulation is used for good: Hong discusses how German regulatory power is used to take down illegal content, false information, and hate speech (Hong, 2022, pp. 78–91). Assuming this strong regulatory authority is not used to censor information that doesn’t fit into one of these three categories, online freedom of speech in Germany is quite strong and fair. 

Like the right to digital privacy, the right to online freedom of speech in the EU also has shortcomings. For example, Szentgáli-Tóth et al. discuss how post-COVID misinformation laws “may become dangerous weapons if used by governments wishing to silence opponents” (Szentgáli-Tóth et al., 2023, p. 214). They do not contend that such laws have resulted in widespread censorship, merely that they could if used for the wrong reasons. Therefore, I argue that although European states have not engaged in widespread censorship, they could potentially have the legal authority to do so, creating a weakness in the European right to freedom of online expression. Finally, the literature discusses how the EU has adopted a policy of “horizontal” regulation, whereby media platforms are obliged to censor illegal content instead of the state taking down content itself (De Gregorio, 2022; Hong, 2022). This presents an important question: are private entities to be trusted with regulating online speech? By outsourcing the enforcement of online speech to private corporations, European Union member states have made their citizens’ digital right to freedom of speech more delicate. 

In sum, the European Union has a very robust digital rights apparatus; EU citizens are largely entitled to more digital freedoms than the rest of the world, having stronger privacy protection in particular. However, there are still certain things that could be improved, such as ensuring that all EU member states can equally enforce the right to digital privacy and creating more safeguards against government censorship, for example.

References

Calzada, I., & Almirall, E. (2020). Data ecosystems for protecting European citizens’ digital rights. Transforming Government: People, Process and Policy, 14(2), 133–147. https://doi.org/10.1108/TG-03-2020-0047

De Gregorio, G. (2022). Digital constitutionalism across the Atlantic. Global Constitutionalism, 11(2), 297–324. https://doi.org/10.1017/S2045381722000016

Hong, M. (2022). Regulating hate speech and disinformation online while protecting freedom of speech as an equal and positive right – comparing Germany, Europe and the United States. Journal of Media Law, 14(1), 76–96. https://doi.org/10.1080/17577632.2022.2083679

Pfisterer, V. M. (2019). The Right to Privacy—A Fundamental Right in Search of Its Identity: Uncovering the CJEU’s Flawed Concept of the Right to Privacy. German Law Journal, 20(05), 722–733. https://doi.org/10.1017/glj.2019.57

Szentgáli-Tóth, B., Gál, K., Kálmán, K., & Toplak, J. (2023). Freedom of Expression and Misinformation Laws During the COVID-19 Pandemic and the European Court of Human Rights. Lex Localis - Journal of Local Self-Government, 21(1), 213–236. https://doi.org/10.4335/21.1.213-236(2023)

Vanberg, A. D. (2021). Informational privacy post GDPR – end of the road or the start of a long journey? The International Journal of Human Rights, 25(1), 52–78. https://doi.org/10.1080/13642987.2020.1789109