By Marija Sajkas
Nani Jansen Reventlow is an international lawyer specialized in human rights litigation, responsible for groundbreaking freedom of expression cases across several national and international jurisdictions. As one of European most prominent experts on the subject of digital rights, she is the founding Director of the Digital Freedom Fund, which supports partners in Europe to advance digital rights through strategic litigation. In addition, she is affiliated with Columbia Law School, Doughty Street Chambers, the Berkman Klein Center for Internet & Society at Harvard University, and has been an advisor to Harvard’s Cyberlaw Clinic since 2016.
One of your core expertise is in the field of digital rights. Having rights as citizens, let alone – digital rights are somewhat of a foreign concept in the Balkans. In short, what do you talk about when advocating for digital rights?
Nani Jansen Reventlow: When we talk about digital rights we talk about all human rights as exercised in the digital sphere. So it’s more than just privacy and freedom of expression, which traditionally have been more or less equated with the term “digital rights.” Not only can all of your civil and political rights be affected in the digital sphere –– such as our right related to the democratic process, as was demonstrated by the Cambridge Analytica scandal –– also our economic, social and cultural rights need to be safeguarded. What if an algorithm makes decisions on whether or not you are eligible to receive unemployment benefits, for example? This could have an impact on your right to housing, healthcare, and so on.
Could you briefly talk about the state of the digital rights in the European Union, presuming that this is where the most progress has been made, vs. the U.S. and the rest of the world?
NJR: We have a solid framework in Europe when it comes to “traditional” digital rights, and especially when it comes to the right to privacy and data protection –– the GDPR is one of the most comprehensive and progressive pieces of data protection regulation in the world. There is also a great international framework to enforce digital rights through litigation, through the Court of Justice of the European Union and the European Court of Human Rights. But also in Europe, as elsewhere, we see states and businesses alike testing the boundaries of the human rights framework, often trying to take advantage of an absence of regulation there where technology advances more quickly than the law does.
Data protection is a big topic in many countries where people rely on the Internet in their everyday life. Could you please tell us more about it, as well as how much is this in relation to government surveillance?
NJR: Data protection is about who controls information about you: information about your private life, professional activities, or anything else. In the European Union, data protection is a fundamental right. EU citizens should be able to decide whether or not they want to share specific information, who has access to it, for how long and for what reason. They also have a right to access their data and have certain modifications made to it. And those who hold other people’s data need to make sure they are being kept safely. This is important not only from a security and crime perspective – so making sure things such as identity theft are limited – but also from a more fundamental privacy perspective. If anyone can collect data from you, combine those data with other pieces of information, it is remarkable how much can be said about who a person is and what they do. This is not only a huge threat to vulnerable groups such as journalists and human rights defenders but could also be dangerous for people who say “they have nothing to hide.” Who is to say that all this information will only be used for good? In whose hands could it potentially fall? Questions like that.
Another popular topic among the European freedom of expression experts is “Right to be forgotten.” What is this all about, and where it is implemented?
NJR: The “right to be forgotten” or the “right to be de-indexed” stems from a case before the Court of Justice of the European Union in which someone claimed his privacy rights in the context of Google search results. Mr. Costeja had brought a case against Google Spain as a newspaper announcement of the forced sale of one of his properties due to social securities debt came up when people searched his name. He wanted Google to remove those links from its search results. The Court held that a search engine should consider requests such as Mr. Costeja's and that removal could be considered there where the search results were “inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed.”
This precedent has subsequently been interpreted in various ways by national courts across the globe, who have been and are considering requests from people wanting a reference to their criminal records in news report removed from search results, or allegations of malpractice by medical doctors. In Latin America, there is a booming business of reputation management firms that use these requests to polish up online profiles. Many questions have arisen on the question of what the scope of the removal from search results should be, too. Should it apply only to national search engines or can you request removal for an entire region or even worldwide? These questions will be decided over the coming months and years.
Some countries such as Germany have a Law on Hate Speech on the Internet. What is your take on that? Should speech online be regulated?
NJR: The right to freedom of expression applies regardless of the medium, so it is also applicable to speech online. This means that, also for online expression, restrictions of it are only permissible under international law under limited circumstances. They need to be based on proper legislation, serve a legitimate aim, such as the rights of others, and be necessary and proportionate in a democratic society. So, if you think about it, the scope for regulating speech in a human rights respecting way is quite narrow.
Besides the human rights questions, one should always ask questions about the way in which a government seeks to regulate speech. The legislating you are referring to imposes heavy penalties on platforms for not removing what the German legislator has identified as “hate speech”. So in essence, it is not only putting regulation in the hands of private, corporate entities, it is also incentivizing them to be overly cautious in what they leave up. This, I think, is a dangerous situation.
At the moment, most of the media in Serbia is controlled, and independent voices have migrated on the Internet with the news often being shared via Twitter and Facebook. Many independent journalists are now the target of attacks ranging from gross insults and death threats to publishing personal information. Should people who are issuing death threats on social media be prosecuted? What about others, who are “only” reposting the same threats?
NJR: What I said earlier about the right to freedom of expression being applicable in the online sphere as much as offline applies here as well. And not all speech is protected so there may be occasions where threats of violence and so on are indeed prosecutable. There are also circumstances where this is actually in support of healthy freedom of expression climate, for example when online attacks are aimed at silencing dissenting or critical voices, or for example the voices of women. For a proper democratic process, we need a plurality of voices, online and off.
On the issue of retweeting: this is an interesting situation where the law often has not yet caught up with reality. Without a clear legal framework to determine when the sharing or retweeting of a threat or perhaps “just” sending one tweet amounts to harassment or worse, the prosecution can become arbitrary. Some countries have started grappling with this: in France, there is new legislation that should make it possible to address “mob” behavior online. It will be interesting to see how that will work out in practice.
What about people or outlets that are speeding fabrications or fake news on the Internet?
NJR: The right to freedom of expression is not limited to “correct” statements. The Special Mandates for freedom of expression of the UN, OSCE, African Union, and the OAS have jointly said that blanket prohibitions of “fake” or “false” news are not compatible with the right to free speech. I think this is right. I have seen “false news” laws in action around the world, and they generally end up being used as a tool for the government to silence opposition. So I don’t believe legislation is the answer. Also, it only scratches the surface of the problem. We should be asking the hard questions, such as why people are unable to identify fabrications and how they can learn to get better at that.