The overarching purpose of this blog is to suggest potential ways of how the fundamental values dimension of the Digital Decade could be achieved.
In her first State of the Union Address, the president of the European Commission (‘the Commission’), Ursula von der Leyen, expressed her clear intention to turn the next ten years into “Europe’s Digital Decade”, outlining a three-part vision about how this can be achieved.[1] Although this vision is predominantly focused on developing new technologies, it is incontestable that the success of this project also depends on how EU’s fundamental values, as outlined in Article 2 of the Treaty on the European Union (TEU), will be promoted and protected during this new digital age.
The overarching purpose of this blog is to suggest potential ways of how the fundamental values dimension of the Digital Decade could be achieved. To do so, two types of challenges will be presented together with the tools that the EU has to deal with them. The first part will consider ‘digitalisation challenges’ a term meant to encompass the challenges that high-end technologies pose to EU’s values and potential ways to address them such as data protection and competition law, while the second will discuss internal challenges related to core values - with a focus on the rule of law backsliding crisis[2] which has recently reached a new peak, Hungary and Poland blocking the budget and the COVID-19 recovery fund in protest of the proposed mechanism on rule of law conditionality. Concluding remarks will then be provided.
While innovation is certainly a key issue, another important aspect of Europe’s Digital Decade is preservation. In this case, preservation takes the meaning of ensuring that the core values on which the EU was built are well protected from the risks raised by emerging technologies such as facial recognition or algorithmic citizenship.
The negative impact that technology can have on democracy and fundamental rights is well documented. The Cambridge Analytica case, for example, has brought to light a number of risks for free elections and ultimately democracy. In that case, personal data, collected by social media platforms has been used to target indecisive votes with tailored political ads through the same platforms.[3] This is a clear example of the dangers associated with the mishandling of data and of the technology required to process it.
Algorithmic decision making has also proven to be problematic. For example, when algorithms were used to decide who should be entitled to benefits in the Netherlands, it has been proven that they were discriminating against minorities. Similarly worrying biases have also been discovered in algorithms used to establish who should be granted bail, both in the UK and in the US.
Another reason for concern is the seemingly unlimited power that big tech seems to hold. These companies dominate their markets, making it nearly impossible for smaller players to enter them therefore ultimately restricting the choice of consumers. This power also turns them into “gate-keepers“, a term used to describe their power to decide who and what basis has access to their services and the data they collect. Their gate-keeping power is also relevant in relation to content moderation, which refers to whether there should be an obligation for these platforms to remove illegal content such as hate-speech or instigation to violence. The case of Myanmar, where it has been argued that Facebook was used as a tool to incite to genocide, shows the consequences of a platform not stepping in when necessary. More recently, a number of gatekeepers have shown their power by permanently banning the President of the United States from using their services.
The European Commission has opened several investigations into whether some of these tech giants are abusing their dominant position. While the cases against Google are already famous in light of the record-breaking fines imposed, probes have also been recently opened against Facebook and Amazon.
In this context, it is perhaps not surprising that tech companies are fighting back, trying to maintain the status quo based around self-regulation. They do so by attempting to play a bigger role in decision-making processes, either through more aggressive lobbying or by attempting to set the agenda and leverage their expertise, for example by releasing their own ethical principles on AI in an attempt to “pre-empt” action from regulators.
These are all important challenges not only for Europe’s goal of digital sovereignty but also for its core values. At least so far, the EU has shown an acute awareness of the challenges it faced and determination to raise up to them. Both these traits have been manifested in proposals for regulation all falling under the umbrella of the EU’s Digital Strategy.
The Digital Strategy is broad and encompasses various important issues. From regulating the behaviour of gatekeepers and their responsibility to remove illegal content to Artificial Intelligence and the collection and transfer of data.
Other than its Digital Strategy, the EU has found other tools to address issues related to the digital sector in its competition enforcement toolbox. The cases against tech giants have been briefly mentioned above but the role of competition policy goes further. The Commission is at the moment considering a proposal for a new competition tool that would be dedicated to the digital sector (although might not be limited to it). The purpose of this tool, it is said, would be to ensure that the Commission has the necessary tools to preserve the competitiveness of markets a clear reference to the digital markets, largely dominated by big tech companies.
The Commission has also recently released the European Democracy Action Plan which deals with some issues related to the digital sector such as political advertisement on online platforms.
While this is all encouraging, whether or not the EU will indeed rise to the challenges it faces depends very much on the final version of these proposals and whether they will be adopted at all.
To this point, it must be kept in mind that the vision of the Commission is not always the same as that of the other EU institutions and raising up to the challenges described above needs a common approach between institutions and solid, comprehensive legislative acts.
For EU’s values to be properly protected during this new, digital age, it must be clear what these values are. Despite the appearances, this question is by no means an easy one to answer, especially in light of the on-going rule of law backsliding crisis which has recently culminated with Hungary and Poland’s veto of the budget and recovering fund in protest of the rule of law conditionality mechanism.[4] Extensively covered in literature, the rule of law crisis is an example of the tensions that can arise between the EU institutions and, more broadly, between the European Union and its Member States. In a delicate area such as digital, which is an important area of economy, and in light of so many lobbying tensions it is likely that these differences will be exacerbated.
It seems likely that some member states will be more focused on fostering innovation and cutting red-tape while others will be more focused on regulation. Indeed, this can already be seen from the approaches taken so far. Spain, has, for example, already started consultations on a “Charter for Digital Rights“.
Finding a balance will be a very delicate process. It is not an overstatement to say that the EU is currently at a crossroads, faced with the challenges of regulating complex, ever-evolving technologies which have already confirmed their potential to change the world. Its digital sovereignty depends on whether this balance can indeed be achieved.
EU’s plans for the digital world are certainly ambitious, not least because of their novelty. The EU seems to be well equipped to create its own digital decade and has so far taken decisive action in this sense. However, the biggest obstacles come from within and, at least for the time being, it is difficult to predict whether the EU will be able to surpass them.
[1] State of the Union 2020 - President von der Leyen's speech, available at: https://ec.europa.eu/info/strategy/strategic-planning/state-union-addresses/state-union-2020_en
[2] For a detail discussion on rule of law backsliding see L Pech and KL Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” (2017) 19 Cambridge Yearbook of European Legal Studies 3.
[3] Stephanie Hankey, Julianne Kerr Morrison and Ravi Naik, “Data and Democracy
in the Digital Age”, The Constitution Society, available at: https://consoc.org.uk/wp-content/uploads/2018/07/Stephanie-Hankey-Julianne-Kerr-Morrison-Ravi-Naik-Data-and-Democracy-in-the-Digital-Age.pdf
[4] At the time of writing it seems that Hungary and Poland will be finally withdrawing their veto, not without imposing conditions however - https://www.euronews.com/2020/12/08/pressure-grows-on-hungary-and-poland-over-1-8-trillion-budget-veto