Is data privacy a basic right in the EU? Maybe it’s time to find out

Many weeks ago I received an unexpected but welcome invitation from the Oireachtas to give evidence before the Grand International Committee on Disinformation, for a meeting hosted in the Seanad last Thursday.

According to the brief for the meeting – one of three annually – this would be an opportunity to directly raise concerns about online platforms and disinformation and hate campaigns, and the ongoing threat of serious electoral interference.

The Grand Committee, initially a UK parliamentary committee but now representing a dozen countries, was created in the wake of the Cambridge Analytica/Facebook data misuse scandal. UK parliamentarians rightly recognised the need to gather international evidence and propose solutions through co-operation on a global scale, because these issues cannot possibly be tackled solely at national level.

As panellist, former Blackberry chief executive and chairman Jim Balsillie, stated in his evidence to the committee last week, "The Cambridge Analytica scandal involved Canadian technology on an American platform, paid for by Russian and US money to interfere in a British referendum over its future in the EU".

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My difficulty was to choose a direction for my evidence statement, given that my own panel was to have five of us, including Observer journalist Carole Cadwalladr, whom I knew would probably speak on the topic of political ads, election interference and Brexit (which she did with gusto).

After long thought and many conversations, I knew I wanted to speak about a subject I cared deeply about: the impact of this range of serious online threats on human rights defenders.

I knew that, far from being a subset within a larger problem, threats to human rights defenders were central to how such campaigns went on to be used everywhere. But such threats, in some of the world’s most repressive countries, often end in violence, arrests, imprisonment or murder.

Critically, activists do not wish to simply leave these social media platforms, because they are a major tool for campaigning for democracy.

Worse to come

Andrew Anderson, executive director of Dublin-based international human rights support organisation Front Line Defenders, told me: "A threat isn't just a threat. It's the warning signal that worse is going to happen, if it's not followed up on. There's precedence in using these [activist] groups as indicators. This is why we should be focusing on human rights defenders."

In 2017 Front Line Defenders analysed data on the killing of 312 activists. In 84 per cent of cases, the defender had previously received threats, many of which were made online. Ed O’Donovan, head of protection at Front Line Defenders, told me, “Attacking the legitimacy and credibility of human rights defenders through these platforms lessens the reaction when they are arrested. The ground has been softened.”

Everyone giving evidence argued that the business model of social media platforms was causing serious problems

Reports that I cited in my longer written submission, from the United Nations, human rights defender organisations, and journalists, note example after example of threats, arrests, and deaths in countries ranging from Myanmar and Pakistan to the Philippines, with Facebook consistently the worst for carrying – and ignoring – campaigns of abuse. But Twitter, Google/YouTube and other platforms are also implicated.

I argued that if we can better understand, and more adequately address these serious harms – the way they come about, how the platforms are utilised, the worrying support sometimes given by platforms that are intent on increased user engagement and that ignore the context of that engagement, the toxic business models that support such activity – we can better resolve the problem for all of us.

Monetising data

At the same time, in looking for solutions, lawmakers must keep in mind that some ill-considered proposals, such as banning the use of encryption or disallowing anonymity, puts pro-democracy activists at serious risk.

Every one of the five people giving evidence on my opening panel argued that the existing business model of social media and search platforms, based on extracting and monetising as much personal data as possible from users, while also encouraging users to addictively engage with and return to the platforms, is the foundation of the serious problems we were discussing. And, we all recommended this model be banned – and not just for political ads, but full stop.

In his forceful statement, Roger McNamee, one of Facebook’s original investors and the author of the book Zucked, proposed that our personal data be given the status of a human right rather than an asset. This, he said, would immediately end the current threatening business model because personal data would be shielded from exploitation.

Intriguingly, many privacy advocates would argue that the European Charter of Fundamental Rights does invoke such a status for EU citizen data. But the implications have never been fully explored, nor the platforms’ data-gathering business model challenged on this basis.

Perhaps it is time.