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.
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:
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.
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.