Digital Rights Charter: the preamble to reform of the Spanish Constitution?


Over the past few decades we have witnessed a series of social, economic, and technological changes that are difficult to assess with such little historical perspective. Technology has surely been the most important factor in these processes. The generalisation of computer devices and telecommunications infrastructures has had multiple effects on virtually all aspects of social and economic life, in the private as well as the public sphere. We live in a world that, as expressed by Nicholas Negroponte, has become digital.

Based on this, the digital transformation is a paradigm shift from analogue to digital.

It is a formidable lever to make business and the economy more dynamic. It works as a new catalyst for innovation, employment, and economic growth. It concerns all citizens and professions, thus including all of us who form part of the legal professions. It also affects states, with emergence of the paradigm I have dubbed the “algorithmic rule of law”.

But some of the emerging technological innovations operate entirely outside the legal system and threaten the traditional role of the state. They also raise important challenges related to decentralisation (think about DLT and blockchain technologies), anonymity, lack of clarity in processes, global interconnectivity, cyber security threats, data ownership, etc.

This is precisely where the issue of digital rights emerges.

Protecting citizens in the digital world

The concept of digital rights encompasses the rights of citizens in the digital environment. Included here are fundamental rights recognised at the highest level in constitutions as well as ordinary rights provided for in laws.

This category is particularly relevant, because the digital transformation must have maximising the quality of democracy and of rights as a structural principle. The law must guarantee that these rights can be exercised and that they are ensured in the digital environment as effectively as they are outside of it. This raises the problem of how to protect them properly, given the special characteristics of the digital world.

Therefore, the category of digital rights not only includes the updating of traditional rights to identify new realities within the framework of the digital society (for example, as happened with the right to be forgotten within the fundamental right to data protection, acknowledged in Spain in STC 58/2018 of 4 June). It also means recognizing new fundamental rights stricto sensu in constitutions. This would be the case for universal Internet access and cyber security, for example, as well as a fundamental right to the truth versus fake news or a right to balance family and working life.

Spanish regulation of digital rights

That said, when it comes to fitting digital rights into the current constitutional framework in Spain, academic and political positions are varied. It has even been proposed that there is a need for this framework to be updated with a specific reform of the Spanish Constitution of 1978.

For the moment, in Spain, Title X of Organic Law 3/2018, of 5 December, on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD), already establishes an initial regulation of these rights. This is regulation that is legal, not ethical, and whose enactment likewise constituted an important novelty in the world’s legal systems.

Specifically, Title X of the LOPDGDD regulates the rights and freedoms predicated upon the Internet environment, such as network neutrality and universal access and the rights to security and digital education, as well as the rights to be forgotten in internet searches or on social media and similar networks, portability on social media and equivalent networks, and the digital will.

The right to digital disconnection should also be emphasised within the framework of the right to privacy in the use of digital devices in the workplace and the protection of minors on the Internet. Finally, it is worth highlighting the guarantee of freedom of expression and the right to clarification of information in digital media.

According to the preamble of the new LOPDGDD of 2018, this Title is based on the need “to address the recognition of a system of guarantees for digital rights that is unequivocally anchored in the mandate imposed by paragraph 4 of Article 18 of the Spanish Constitution and which, in some cases, has already been outlined in ordinary, constitutional, and European jurisprudence”. All this regarding “a desirable future reform of the Constitution” does not include “updating of the Constitution for the digital age and, specifically, [raising] to constitutional status a new generation of digital rights”.

Why a Digital Rights Charter

The next step occurred with the Spanish Digital Rights Charter of 2021.

The Charter, adopted by the Government on 14 July 2021, is structured into five main sections: rights of freedom, rights of equality, rights of participation and shaping the public space, rights of the working and business environment, and, lastly, digital rights in specific environments. And in each of these areas there is a list of related rights, reaching a total of twenty-five.

Even so, its aim is not to draft a legal standard (which has led to understandable disappointment) but rather to draw up a document that can serve as reference for a future law that improves digital rights. This is based on the fact that, in principle, specific reform of the Spanish Constitution of 1978 would be extremely positive, although it is also true that fundamental rights are currently protected in the digital realm.

But the Charter can serve additional purposes other than becoming a pre-legislative document.

For example, it can serve public authorities to actively promote the codes of conduct inspired by the principles in the text. Or as an impetus for digital public policies. Similarly, it is a useful instrument for interpreting certain diffuse concepts in current legislation. And, finally, it represents the beginning of a debate on new digital rights, to date unregulated, and the way in which they should be modulated, such as in the use of neurotechnologies.

From now on, it is primarily the responsibility of the Spanish Parliament and the Spanish Government, who are the main constitutional actors responsible for the legislative initiative (Art. 81.1 CE), to enact new legislation to improve the protection of digital rights in our country.

By Moisés Barrio Andrés, Professor of Internet Law at the Universidad Carlos III.

This article was originally published in The Conversation and the EADT is sharing it for your interest. Even so, it does not necessarily reflect the position of the Association.

The Conversation