di Michele Failla
We live in the era of surveillance capitalism, where a massive quantity of data, the so-called “big data”, is produced every single day and fed to very powerful computers. Then, algorithms analyse and use them, in a continuous race among companies, which, pushed by the pursuit of profits, aim to profile, predict and, ultimately, control individual behaviour. This state of things, as the American election and Brexit referendum campaigns largely showed, can have a tremendous impact on the proper functioning of democracy as well as the exercise of fundamental rights. Indeed, threats to fundamental rights have emerged in new forms: algorithmic decision-making, micro-targeting techniques, dark posts, disinformation, just to name a few. After the Facebook–Cambridge Analytica data scandal, the potential negative consequences of surveillance capitalism bluntly emerged. Ordinary citizens started to be more and more aware of potential unintended consequences of their online behaviour. The EU, therefore, decided to act trying to protect elections’ integrity and democracy at large. The new European Commission elected in 2019 has clear political guidelines aiming at achieving “a Europe fit for digital age” and generating “a new push for European Democracy”. In this regard, President Von Der Leyen ambitiously committed to start a Conference on the Future of Europe and to run it for two years, with the possibility to make Treaty changes and submit legislative proposals. She also committed to protecting European Democracy by putting forward a Democracy Action Plan. Such Plan, recently published, suggests a number of initiatives including a “legislative proposal on the transparency of sponsored political content”, which “will complement the rules on online advertising in of the forthcoming Digital Services Act (DSA)” and a new “strengthened Code of Practice on Disinformation”. Despite all these good initiatives – one should also recall the Digital Markets Act (DMA) – I am persuaded that the EU should be more ambitious and grasp the opportunity of possible Treaty changes to adopt a “Charter of Digital Fundamental Rights”. This Charter would represent a major step forward in the protection of European democracy and empowerment of European citizens. In 2015, the Italian Chamber of Deputies, under the aegis of one of his most brilliant legal scholars, professor S. Rodotà, adopted a pioneering document: the “Declaration of Internet Rights”. This legal text could offer guidance and be the basis of the new Charter. In this sense, it is also useful to recall that the European Parliament adopted, in 2017, a resolution on “e-Democracy in the EU: potential and challenges” calling “on the European institutions to launch a participatory process in order to elaborate a European Charter of Internet Rights, taking as reference, among other texts, the Declaration of Internet Rights published by Italy’s Chamber of Deputies on 28th July 2015, in order to promote and guarantee all the rights pertaining to the digital sphere, among them the genuine right of access to the internet and net neutrality”. Further, the forthcoming EU Portuguese Presidency, in its leadership role of the Council of the EU, seems willing to go in the same direction. Speculations suggest indeed that they would put forward a proposal for a “Charter of Digital Rights”. It is, therefore, crucial to seize this opportunity, build momentum and launch the process to adopt this Charter. All three European lawmakers seem to agree on the necessity of adopting a similar legal text.
In light of this, the idea of the Conference, in view of Treaty changes, should be re-launched and reinvigorated. The ‘constitutionalisation’ of digital rights at the European level can no longer be postponed: time has come for a real protection of European democracy that only the crystallisation of fundamental digital rights can offer. Such a Charter would have a high symbolic value. On the one hand, it would represent a concrete answer to the data scandals occurred recently in Europe and beyond and, on the other hand, it would offer the European view of how to shape the digital sphere. The EU would have the chance to set standards that could be taken as global reference, at the same time reinvigorating the European project around its core values. It would represent the overcoming of the purely economic dimension of the achievement of the digital single market. The Charter, in order to be effective, should be legally binding. In this regard, by overcoming the sectoral legislation in the hierarchy of sources, it would have the merit to offer legal clarity and guidance in the interpretation of the same legislation. Civil society organisations should join forces and cooperate to achieve such a result: calling for this Charter with one voice would be much more effective.
In the meanwhile of the adoption of the Charter, the EU should also take another important step, which can help to shape a fairer digital world and address some structural market failures. I refer to the possibility to recognise data as commons. This could be perhaps introduced in the so-called Data Governance Act, which already foresees an interesting innovation, namely data altruism. User-generated data, including personal data in the meaning of Article 4 of General Data Protection Regulation (GDPR), if aggregated, can play a very important role for society at large and help to overcome some challenges, e.g. the COVID-19 pandemic. For this reason, irrespective of the subject who wants to collect, analyse and use such data, this should happen at the conditions established by the community and in its interest. Indeed, user-generated data belongs to the community of users: in other words, to all of us. Data are often referred to as the ‘oil of twenty-first century’: it is, therefore, crucial that the management of user-generated data is not left in the exclusive hands of private subjects to safeguard citizens’ fundamental rights as well as the integrity of democracy. As it has been pointed out, indeed, data acquire value “as something we own in common, not as something we own as individuals”. Therefore, the legal concept of the commons seems to offer the best option to achieve the aforementioned goal. In addition, this seems an effective way to curb the immense power of global surveillance capitalism: a system where companies have thrived thanks to a business model based on “data extractivism” and the pursuit of profits regardless of individual and social consequences.
In conclusion, these two concrete proposals would send the global message that, even in the digital era, the EU is at the forefront in the protection of democracy and fundamental rights and that the European integration project is not only guided by the economic drive.
 Prof. Shoshana Zuboff coined this expression. See in particular, S. Zuboff, “Big other: surveillance capitalism and the prospects of an information civilization”, Journal of Information Technology, No. 30, 2015, pp. 75-89 and S. Zuboff, The Age of Surveillance Capitalism. The fight for human future at the new frontier of power, New York, Public Affairs, 1st edn., 2019.
 Among others, it is noteworthy to recall here: the Communication on Securing free and fair European elections, the Code of Practice against disinformation and the Action Plan against Disinformation.
 Political guidelines for the next European Commission 2019-2024; Opening statement in the European Parliament plenary session 16 July 2019 and Speech in the European Parliament plenary session 27 November 2019 of Ursula Von Der Leyen.
 The Democracy Action Plan has been published on the 2nd of December 2020. For a complete overview see: https://ec.europa.eu/info/strategy/priorities-2019-2024/new-push-european-democracy/european-democracy-action-plan_en.
 For an overview, see: https://www.camera.it/leg17/1179.
 European Parliament resolution of 16 March 2017 on e-democracy in the European Union: potential and challenges (2016/2008(INI)).
 See in this sense, S. Stolton, “Portugal EU Presidency to present ‘Charter of Digital Rights’”, EURACTIV, 28th October 2020.
 See in this sense J. Shkabatur, “The Global Commons of Data”, Stanford Technology Law Review, Vol. 22, 2019, https://ssrn.com/abstract=3263466, who argues that user-generated data should be recognised as a ‘Global commons’ and offers concrete suggestions on how concretely implement this idea.
 E. Morozov, “After the Facebook scandal it’s time to base the digital economy on public v private ownership of data”, The Guardian, 1st April 2018.