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Law: a key part of Europe’s Third way

2020/07/15

by Jean-Marie Cavada, Former MEP

For the past 20 years, the EU has been looking for a brand-new way (different from both China and the US) to balance the digital onslaught on our lives and a specific idea of freedom. Europe initially attempted to establish safeguards by creating the role of Data Controller. In reality, the first European law was established in 1995, under the form of a “data protection” directive. The juridical notion then appeared in 2000, in Article 8 §1 of the Charter of Fundamental Rights, which went into full legal effect with the Lisbon Treaty of 2007. It was concretely used the following year in a framework decision about setting up police and judicial co-operation in criminal matters in Europe.

Obviously the most solid base is the GDPR, to which I greatly contributed, and which was applied in all Members States on 25 May 2018, immediately after it was voted. During my third and last European mandate (as VP of the Committee of Judicial Affairs), from 2014 to 2018, a small number of members, including myself, have drawn clear judicial lines to identify an impassable protection area. For example, the vital interests of corporations had to be protected from the ever-expanding digital technologies by means of the “Trade Secrets” directive. The context of demands for transparency for companies or institutions has made mandatory the protection of true whistleblowers against opaque financial or political powers. Another example would be the “Satellite and Cable” directive in the eponymous sector. Another necessity imposed by the many Europeans travelling within the EU was the rationalisation of data portability inside the 27 Member States. And finally began the epic battle for the rescue of the European creative economy through a better distribution of the wealth generated by the entire chain of artistic and journalistic creators. At the time, this industry was worth around 536 billion Euros per year (more than the automotive and telecommunication sectors combined) and employed more than 7 million people.

The sanitary crisis, by ravaging lives, wealth and thus jobs, brought to light more than ever the undeniable importance of digital technologies, yet also the fundamental, non-negotiable, and mandatory respect of the rights on which our democracies are built. And in Europe, we have shed blood to get to this point. This time however, the public opinion has not remained unaffected, it debates, it understands. We are aware that this entire situation is fragile, transitioning, searching for doctrines as new fulcrums.

Such is the purpose of the Institute for Digital Fundamental Rights (https://idfrights.org), which aims to develop a solid body of law in two sectors. It is vital that we defend the fundamental freedoms (individual or collective), as well as the liberties required for the powerful independence of our economic entities; that we defend them from the sometimes sprawling encroachment of digital technologies, coordinated by financial empires stronger than nation-states. Like for our fundamental freedoms, the big sectors of the national economies of Europe (and first and foremost of France) must be ready to strike from the moment they are affected or threatened by the digital world. Especially when in that domain there is a lack of new rules, standards, or norms, thus a demand for the creation or update of national, or directly community, law.

In the long term, European citizens will not abide by economic or commercial rat races. Neither by black holes in the galaxy of our very hard-fought and unstable freedoms. The sanitary situation has brought to the forefront the anxious demands for sovereign protective measures to Brussels, even though their own governments had refused the transfer of jurisdiction to the EU. Regarding digital technologies, the “European third way must grow stronger: its legislation is still in its teenage state. Let us hope it will soon reach adulthood. Otherwise Europe will face continent-wide downgrading.”