Old and New Rights in the Digital World
Shara Monteleone (IPTS-JRC) and Angela Daly (European University Institute) present their paper on freedom of expression, data protection and digital identity
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“Old and new rights in the digital world. A glance at freedom of expression, data protection and digital identity” – Angela Daly & Shara Monteleone (European University Institute)
Globalization and the development of information technologies promise to increase the quality of human communications and to foster general economic growth. What is, however, the impact of this digital evolution on traditional rights, such as freedom of expression and on ‘new’ rights, such as data protection and digital identity? The aim of this paper is to identify the main challenges and risks that these rights have to face within a global digital environment and, in the meantime, highlight the opportunities that HR protection could receive from digital technologies, if they are properly deployed. This contribution will consider as case-studies some significant ‘digital events’ of the web.2.0 era, namely the Huffington Post/AOL merger and the recent developments in the functionality of Social Networking sites (SNS) (e.g. Facebook’s default settings or its launch of new facial recognition system): they will be used as starting points for a wider discussion on the evolution of freedom of expression and data protection rights in the online world. The first case illustrates also the various possibilities offered by digital technologies to enhance democratic values (pluralism, participation, freedom of information, as also exemplified by the recent events surrounding the North African dissidents), but also the risks posed to these values when other interests (of an economic and political nature) prevail. To which extent the new Internet platforms offer true interaction, true freedom of choice, true pluralism? The AOL Huffington Post example will be used in particular to show the increasing economic consolidation on the Internet and the effects this may have for competition and pluralism of thought and opinion on the medium, related as well to freedom of expression. In addition, the specific implications of this merger on blogs and blogging will be examined, which will take into account issues of ownership and control of blogged material by individual authors, a subject which will be related more generally to online data processing by individuals for private purposes. The fact of many of the actors involved in these kinds of issues are private bodies (corporations etc) will also be explored, and the challenges of this elaborated, especially since the legal and constitutional protection of HRs is generally oriented to infringements by public actors. The paper will reflect on the adequacy of such a framing of HR protection given the issues in this area produced in the online context. Moreover, the SNS example will offer the occasion for a) a reflection on the users’ online attitudes concerning identity management and data protection (taking into account the results of the recent Eurobarometer 359 “The state of the e-Identity and Data Protection in Europe”) and for b) a consideration on the increasing use of smart, networked technologies in the digital environment (often relying on human physical/behavioral attributes) that strain one of the main data protection requirements, the consent (Art 29 WP recently adopted an Opinion on the related definition). After a brief overview of these cases, the focus will be on the available legal instruments to cope with them. It will be argued that legal measures of hard and soft law, at international or regional level, could be helpful and effective only if able to combine a sufficient degree of flexibility – necessary to adapt to the new technologies and new generation of users – with a level of rigidity necessary to ensure the rights protection against the opposite strengths acting in the digital word. This is likely one of the challenges that the new data protection framework, announced by the European Commission, has to face.