Digital Rights Regulation in the European Union

Mikhail N. Kuznetsov

, Ekaterina P. Rusakova

and Viktor V. Zaitsev

Peoples’ Friendship University of Russia (RUDN University), Moscow, Russia

Keywords: digital rights, protection of digital rights, the right to protect personal data, the right to access the Internet, the

right to be forgotten, the European Union.

Abstract:

The development of digital rights is of concern to the European community and requires the creation of a new

regulatory framework. Today, the European Union is striving to unify the existing regulation of digital rights.

The purpose of the research is to analyze the concept of digital rights in Europe, identify trends in legal

regulation, and study the most important documents in the system of digital rights regulation. The importance

and relevance of the article is caused by the fact that the concept of "digital rights" still does not have a

generally accepted definition, there is no unified legislation on the territory of the European Union. Countries

in Europe have adopted controversial laws that may violate the right to freedom of expression, which causes

outrage among international organizations involved in the development of digital rights regulation. The result

of the work is the identification of two trends in relation to the definition of "digital rights", namely: to

consider digital rights as an independent right or a means for the realization of fundamental rights. The authors

draw the following conclusions: there is a tendency to replace Directives with the adoption of Regulations on

the regulation of digital rights, which contributes to the accelerated unification of legislation on the regulation

of digital rights; the existence of international organizations that provide legal assistance in legal disputes

involving digital rights. As a general conclusion, it can be noted that the European Community believes that

digital rights are under threat, in this regard, the European Union is actively developing rules for regulating

digital rights, protecting personal data, organizing public consultations on digital rights and taking into

account opinions on the regulation of artificial intelligence.

1 INTRODUCTION

The development of digital technologies requires

legal regulation and the formation of methods of

protection in case of violation of digital rights. Today,

digital rights are not something unknown to society.

It has become much more common to mention the

violation of digital rights, their acquisition, alienation,

and litigation, the subject of which is digital rights.

However, digital rights in Europe remain under

threat. In this regard, it is necessary to have an

effective legal framework aimed at regulating digital

rights. In this article, we propose to analyze the

experience of the European Union. It is important to

note that the concept of "digital rights" introduced in

the Civil Code of the Russian Federation is a special

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branch concept and has no relation to the concept of

digital rights emerging in international law.

The appearance of the term "digital rights" was

preceded by other terminology: "human rights on the

Internet", "Internet rights" and others. To date, the

concept of "digital rights" has become widespread,

but has not yet been fully formed. The head of the

Digital Freedoms Foundation (DFF), Nani Jansen

Reventlow, believes that the concept of "digital

rights" should be interpreted broadly, and digital

rights should be understood as human rights in online

and online spaces. The content of digital rights and

the nature of the state's obligations to ensure digital

rights are considered by the authors in different ways.

Among digital rights, such topics as the right to be

forgotten, the right to protect personal data, and the

right to access the Internet are most often studied.

Kuznetsov, M., Rusakova, E. and Zaitsev, V.

Digital Rights Regulation in the European Union.

DOI: 10.5220/0010660200003224

In Proceedings of the 1st International Scientiﬁc Forum on Jurisprudence (WFLAW 2021), pages 45-49

ISBN: 978-989-758-598-2

2 RESEARCH METHODOLOGY

The theoretical basis of the study was the regulations

and directives of the European Union, the legislation

of the countries of the European Union, the works of

domestic and foreign scientists.

The research methodology includes general

scientific methods of cognition (dialectical, formal-

logical), private scientific methods (historical,

ethnographic, anthroposociological, statistical) and

special legal methods (legal-dogmatic and

comparative-legal).

The theoretical and methodological component of

the study is represented by the works of the authors-

Shugurov M. V., Tian Y.-J., Hugenholty P. B.,

Determann L., Vinton G., Tomalty J, Varlamova N.

V., Mikhailov S. V.

3 RESEARCH RESULTS

Digital rights can be considered in two aspects:

• digital rights are new fundamental independent

human rights;

• digital rights are only a means to realize

traditional human rights.

The European Union has created a universal

system for regulating digital rights.

One of the most recent acts regulating digital

rights is Directive (EU) No 2019/790 on copyright

and related rights in the Digital Single Market. The

purpose of this Directive is to create conditions for

the functioning of a single digital market. The

strategy of the single digital market is based on three

aspects:

• improved consumer and business access to

online products and services across Europe;

• creating an enabling environment for digital

networks and services to thrive;

• increasing the growth potential for the European

digital economy.

At the same time, a number of countries adopt

controversial legislation in the field of freedom of

speech on the Internet. For example, in Germany, on

18.06.2020, a law on "hate speech" in social networks

was adopted, which caused heated discussions.

The legal community in Europe is faced with a

number of issues that have not yet been resolved in

the context of resolving digital rights disputes,

namely, whether it is necessary to initiate proceedings

in different jurisdictions simultaneously; to adhere to

the same strategy for protecting digital rights in

different jurisdictions, or to use different strategies in

different countries. These issues should be openly

discussed by the legal community of the European

Union, and the experience gained in Europe can be

used in other countries of the world.

4 DISCUSSION OF THE RESULTS

The right to be forgotten and the right to the

protection of personal data is considered as an

element of the right to respect for privacy. The right

to be forgotten is a legal opportunity to demand the

removal of links in search engines to inappropriate,

outdated, inaccurate, incomplete information about a

person, if they can cause him harm .

The European Order initially recognized personal

data as an inherent right to respect for private and

family life. With the advent of digital technologies,

the Internet, personal data has "flowed" into the

digital space, where it has received similar

recognition as an integral element of the right to

respect for privacy, protection and protection of

fundamental rights. Given the increased threat of the

dissemination and disclosure of personal data, the

European Union has created special legislation in this

area . One of the first acts that established the

protection of personal data, and therefore the

protection of digital rights, was the data protection

Law adopted by the federal State of Hesse in 1970 .

The right to access the Internet can be considered

in two ways: technical and political-ideological. The

right to access the Internet in the technical aspect

implies the implementation of digital rights with the

help of the appropriate technical infrastructure, in the

political and ideological aspect it is considered as a

guarantee of free access to the information contained

in the "Network". While the rights to be forgotten and

the right to the protection of personal data were

considered as an element of the right to respect for

privacy, the right to access the Internet is an element

of the right to freedom of expression. The right to

access the Internet was internationally recognized in

the Report of the Special Rapporteur on the

promotion and protection of the right to freedom of

opinion and expression of 16 May 2011

(A/HRC/17/27) (hereinafter referred to as the UN

Report) , which emphasized the attribution of this

right to fundamental human rights. However, in the

doctrine, some authors did not agree with the

interpretation of the UN Report on the attribution of

the right to access the Internet to fundamental rights,

believing that this statement is controversial and the

right to access the Internet is a means of realizing the

WFLAW 2021 - INTERNATIONAL SCIENTIFIC FORUM ON JURISPRUDENCE

right to freedom of expression and the right to

information .

In the development of digital rights, great

importance is given to their protection. In the context

of digital activity, the rights to privacy and freedom

of expression are often violated. In the European

Union, this issue is actively resolved by the ECHR,

which considers disputes related to the use of

electronic means (tracking of electronic

correspondence, mass introduction of video cameras,

indefinite storage of fingerprint data, cell samples and

DNA profiles in electronic banks, etc.) . The scope of

digital rights and their protection is not limited to the

practice of the ECHR.

For example, the Charter of Human Rights on the

Internet establishes:

• the right to access the Internet, which follows

from article 26 of the Universal Declaration of

Human Rights, which guarantees the right to

education;

• the right to freedom of expression and

association (Article 18-20 of the Universal

Declaration of Human Rights – the right to participate

in online protests);

• the right to access knowledge, according to

article 27 of the Universal Declaration of Human

Rights (the right to freedom of information);

• The right to free and open source software and

technology (article 27 of the Universal Declaration of

Human Rights);

• the right to privacy, freedom from surveillance

and encryption (article 12 of the Universal

Declaration of Human Rights);

• the right to Internet governance, which includes:

the right to an open Internet architecture; the right to

transparency and accessibility of decisions related to

the governance and development of the Internet; the

right to multilateral democratic oversight of Internet

governance;

• the right to know, protect and exercise rights on

the Internet.

This list is not exhaustive, since the development

of technologies, the Internet, content, and services

contributes to the emergence of new digital rights,

which in turn need to be protected and protected.

In Europe, the protection of digital rights is one of

the most relevant topics. In October 2017, the Digital

Freedoms Foundation was established in Berlin, the

main goals of which were: strengthen cooperation

between digital rights protection actors and provide

them with the means to pursue strategic litigation.

The General Data Protection Regulation (GDPR),

adopted by the European Parliament on December 17,

2015 (hereinafter referred to as the Regulation), was

created to unify the provisions governing the

protection of personal data of individuals in the

European Union, and is mandatory for the countries

of the European Union, since it was adopted in the

form of a regulation.

The Regulation sets out specific types of safety

that can be considered «risk-appropriate», including:

• pseudonymization and encryption of personal

data;

• the ability to ensure the continued

confidentiality, integrity, availability, and

sustainability of processing systems and services;

• the ability to restore the availability and access

to personal data in a timely manner in the event of a

physical or technical incident;

• the ability to restore the availability and access

to personal data in a timely manner in the event of a

physical or technical incident.

The Regulation defines the concepts of «personal

data», «controller», «operator», «project data

protection», «pseudonymization», «profiling» and

others. The Regulation sets restrictions on the transfer

of personal data to "third countries" (i.e. outside the

EU) and to international organizations. The rights of

personal data subjects are regulated, including: the

right to access, the right to rectification, the right to

deletion, the right to restriction, and the right to

portability.

The Directive (EU) No 2019/790 on copyright

and related rights in the Digital Single Market

regulates the issues of expanding the list of

mandatory restrictions and exceptions, establishes

new rules for works that have gone out of circulation,

regulates the legal regime of expanded collective

licensing, recognizes publications in the press as new

objects of exclusive rights, and creates special

regulations for certain categories of online platforms.

In accordance with this law, social network

operators are required to inform the Federal Criminal

Investigation Department about incitement to

national hatred, depiction of acts of violence,

propaganda, use of prohibited symbols, preparation

of serious crimes, and death threats. Opponents of the

law, including the UN Special Representative for

Freedom of Speech, David Kay, believe that the law

violates the rights of subjects on the Internet and will

lead to greater censorship. Similar trends are

observed in France, where laws have been passed to

curb terrorism, but these laws seriously violate the

rights to freedom of speech . In France, it was

proposed to adopt the so-called «Air Law», but this

bill was rejected due to the disproportionate impact

on freedom of speech .

Digital Rights Regulation in the European Union

The civil and legal community is actively

involved in the regulation of digital rights. The

Digital Freedoms Foundation, the Foundation for

Democracy and Media, and the Renewable Freedom

Foundation plan to create a project on future digital

rights challenges as a complement to the support for

judicial work that the Digital Freedoms Foundation is

actively pursuing. These funds plan research in the

field of artificial intelligence, ensuring equal

conditions in the digital sphere, and defining the

boundaries of freedom of thought.

On February 19, 2020, the European Commission

adopted the digital strategy of the European Union,

which, in addition to regulating digital rights,

addresses the development of legal norms for the

development and implementation of artificial

intelligence. According to this strategy, it is planned

to attract European, public and private funding for the

development of the digital space. One important

aspect is to keep the focus on human needs in the

development of artificial intelligence, especially in

industries such as law enforcement. In line with this

strategy, the European Commission plans to initiate

public consultations on digital rights and the

development of artificial intelligence systems.

At the same time, the strategy adopted a document

entitled Shaping the digital future of Europe («White

Paper on Artificial Intelligence»), which covers the

regulation of digital rights and artificial intelligence .

The European Community is concerned about the

digital transformation in society, the economy, the

protection of human rights, digital rights.

With regard to digital rights and data, the

document regulates the following aspects:

• the formation of a regulatory framework that

will motivate the exchange of data between

government agencies and commercial organizations,

without forgetting about the protection of digital

rights, personal data and consumer rights;

• incentivize by encouraging public authorities to

disclose high-value data sets;

• encouraging the creation of data sets for the

European Union, which focus on the areas of

industrial production, digital rights protection, and

mobility.

In the regulation of digital rights, there is a

tendency to replace the Directives of the European

Union with a Regulation, for example, in 2020,

discussions began on changing the Directive on e-

Commerce to the Law on Digital Services, adopted in

the form of a Regulation. The main purpose of the

Digital Services Act is to unify the rules on the

territory of the European Union regarding the

suppression of illegal and malicious content on the

Internet. In Europe, there is already a practice of

creating such laws, as examples mentioned above

were Germany and France, which adopted or tried to

adopt a law to regulate the removal of illegal and

malicious content. The Digital Services Act provides

for the creation of a certain "notification and action"

mechanism that will ensure that online services have

the same processes for removing content in the event

that it has been found illegal. The Law on Digital

Services applies not only to the states of the European

Union, but also defines the range of organizations.

One of these organizations is the Corporation for the

Management of Domain Names and IP Addresses,

which interacts with states in the framework of the

regulation of digital rights and carries out technical

regulation in the Internet system.

The Law on Digital Services provides for certain

requirements for Internet companies, including

penalties that may follow for non-compliance with

these requirements:

• Internet platforms must share some data with

regulators and even competitors;

• users should be able to delete pre-installed

applications and download other software;

• Internet platforms should strengthen their

control over ambiguous, illegal or misleading

content;

• in case of non-compliance with the rules on the

part of Internet sites, temporary blocking is possible;

• setting fines in case of non-compliance with the

requirements of the Digital Services Act.

It is assumed that the Law on Digital Services will

create a certain order in the field of legal regulation

of digital rights and personal data. The Law sets out

two main objectives: to create safe and reliable

services, while protecting freedom of expression.

These tasks are aimed at achieving a common goal,

namely, to guarantee users access to a wide range of

services online .

One of the important issues for the European

community is the protection of children's rights in the

digital space. The Council of Europe has adopted the

following documents: Recommendation CM/Rec

(2008) 6 of the Committee of Ministers for the

member States of the Council of Europe "On

measures to promote respect for freedom of speech

and information in connection with Internet filters",

Declaration of the Committee of Ministers on

Protecting the Dignity, Safety and Privacy of

Children on the Internet (2008), Recommendation of

the Committee of Ministers CM/Rec (2009) 5 on

measures to protect children from harmful content

and behavior and to promote their active participation

WFLAW 2021 - INTERNATIONAL SCIENTIFIC FORUM ON JURISPRUDENCE

in the new information and communication

environment.

5 CONCLUSION

Thus, at the present time in Europe, there is no

definitive concept of "digital rights". Most European

organizations use a broad interpretation of the

concept of "digital rights". Digital rights are defined

as individual rights, such as the right to access the

Internet, the right to be forgotten, and the right to

protect personal data. It is still an open question

whether these rights are independent rights or

represent a means for the realization of independent

fundamental rights such as the right to respect for

private life, the right to freedom of expression. The

European Community is concerned about the

regulation of digital rights, their protection and the

protection of personal data. The authorities of the

European Union adopt appropriate regulations and

strive to unify the rules governing digital rights. The

tendency of states to adopt legislation on the

suppression of illegal activities on the Internet is

causing a heated debate in Europe, as a number of

experts believe that these laws are a direct violation

of freedom of speech and expression. The European

Union strives to take all aspects into account in order

to create effective legal regulation, for example, by

holding public consultations on digital rights and

taking into account the views of citizens on the

regulation of artificial intelligence. The

corresponding legal regulation is also adopted in the

field of protection of children's rights on the Internet.

An important role is played by international

organizations and Internet companies, one of the most

notable is the assistance provided by the Digital

Freedoms Foundation (DFF) in the litigation of a

dispute over digital rights. In this regard, it should be

noted that Europe is committed to regulating all

issues of digital rights, establishing unified rules, and

most importantly – the absence of a threat to digital

rights in Europe.

ACKNOWLEDGMENTS

Acknowledgement. the research was carried out with

the financial support of the russian foundation for

basic research in the framework of scientific project

NO. 20-011-00450

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Digital Rights Regulation in the European Union