Digital Rights Charters: Governments, the time has come!

On March 25, during the XXVIII Ibero-American Summit of Heads of State and Government, the "Ibero-American Charter of Principles and Rights in Digital Environments" was adopted, an official but non-binding document that assesses the impact of the digitization and digital transformation on human rights, and proposes different measures so that these are not affected in the digital sphere. This initiative is the most recent example of a current trend by governments to produce Digital Rights Charters, documents that have historically been promoted by civil society and the private sector.

Source: SEGIB

On July 14, 2021, the President of the Government of Spain, Pedro Sanchez, presented the “Charter of Digital Rights”, a non-regulatory document that presents a reference framework to guarantee citizens' rights in the new digital age. Subsequently, other countries and international organizations have published or are working on the publication of similar Charters, a response from governments to the challenges that technologies such as Artificial Intelligence are imposing on society.

Making statements on how we need to adress the impact of digital technologies is an idea that does not lack exponents. One of the best known examples is the Declaration of Independence of Cyberspace, published by John Perry Barlow in 1996. Specifically addressing human rights, the Association for Progressive Communications (APC) presented in 2006 the first Internet Rights Chater . Finally, in 2014 the telecommunciation company Telefonica published its Digital Manifesto, in which explicit mention is made of digital rights.

A common denominator of the aforementioned initiatives is their proactive nature, since they promote a vision of technology development, in harmony with fundamental values and principles. Likewise, they all contain calls to action directed to governments. It is interesting to see how the passage of time changed the perspectives on what should be the role of States in the digital ecosystem. While Perry Barlow advocates his non-intervention, both the APC and Telefonica urge them to engage in multi-stakeholder governance.

Historically, the way governments have responded to these calls has been through regulation. At first, these regulations, as well as the discussions around them, were eminently local. However, with the advance of globalization and the appearance of disruptive technologies, these have increasingly become local adaptations of legal frameworks built at the regional and international level. Let’s think, for example, on instruments such as the UNCITRAL Model Law on Electronic Commerce (1996), the Budapest Convention (2001) or the General Data Protection Regulation (2016).

Existing Digital Rights Charters have being shaped differently. To begin with, most of them are not binding. This, which could be considered as a weakness, is actually a strength. By not being binding, governments are more free to express clearly what their intentions are in cyberspace. In addition, although most of the Charters indicate that they only summarize the existing digital regulation, the mere exercise of reproduction allows the appearance of new interpretations on the excercise of rights in digital environments. And at least in the case of Spain, some of its drafters have made it clear they expect the Charter is a first step to produce new legislation.

The European Union (EU) and its members have been especially prolific in the production of Digital Rights Charters. In addition to Spain's Charter of Digital Rights, we can mention Italy's Declaration of Internet Rights, the Portuguese Charter of Human Rights in the Digital Age (an actual law) and the European Declaration on Digital Rights and Principles for the Digital Decade. On the other side of the ocean we also find similar initiatives, the very recently approved Ibero-American Charter of Principles and Rights in Digital Environments, the Declaration for the Future of the Internet promoted by the United States and adhered to by 60 countries and finally the in-process Charter of Digital Rights of Peru.

Unlike civil society and the private sector, in their Charters, governments and international organizations can only question themselves and the way in which they have been responding to the challenges for human rights posed by digitization and digital transformation. Thus, these institutional positioning exercises constitute an excellent opportunity to rethink past actions, correct present ones, and guide future ones, specially in critical issues such as connectivity, cybersecurity, education and, of course, problematic practices like Internet shutdowns and online surveillance.

It must also be said that the processes under which most of these instruments have been developed has allowed unprecedented flexibility. As they are not laws, the participation of non-governmental actors has been greatly encouraged, an approach not so often used due to the limitations of the bureaucracy and the tense relations between civil society and some governments. If we consider that Brazilian Civil Framework of the Internet, which is a binding document, required a discussion process of almost 5 years and the Digital Rights Charter of Spain only 1, including its drafting by a Committee of experts and a public consultation, their appealing to policymakers is undeniable.

Of course, all the positive aspects cited so far, may in turn be the same reasons why other countries may not consider Digital Rights Charters as suitable options to guide their public policy processes. It is not surprising that these initiatives have been adopted so far by countries or regions with stable democracies and not by authoritarian regimes. In any case, the existence of these documents seems to be a great opportunity to discuss the new role that governments have in this brave new digital world.

Does this mean that we will see more of these initiatives in the future? Time will tell.

*This article is based on a previous one we wrote (“Cartas de Derechos Digitales para una Era Digital”) for the blog of ENATIC.