State and corporate power, human rights and privacy in the emerging digital environment
Submitting Institution
London Metropolitan UniversityUnit of Assessment
LawSummary Impact Type
PoliticalResearch Subject Area(s)
Studies In Human Society: Policy and Administration
Law and Legal Studies: Law
Summary of the impact
This case study describes the impact of the work by Professor Douwe
Korff, usually working with Dr Ian Brown of the Oxford Internet Institute
and UK and European non-governmental organisations, on the policies of the
EU and the Council of Europe relating to the Internet, ubiquitous
computing and the use of social media.The issues addressed range from
freedom of expression on the Internet and the use of social media for
political activism to the human rights aspects of the proposed (but
defeated) anti-counterfeiting agreement, ACTA, but the work focusses on
data protection. Specifically, the work impacted on the drafting of the
proposed EU Data Protection Regulation; on European policies on privacy
and terrorism, social media and free speech; on the priorities of the
Council of Europe in relation to the Internet and cybercrime; and on the
defeat of ACTA.
Underpinning research
Douwe Korff has been closely involved in data protection since the 1980s,
when he advised Amnesty International (where he had previously been Head
of Europe Research) on the implications; in the 1990s when he advised the
European direct marketing association FEDIM/FEDMA and major international
companies on first the various drafts and then the adopted text of the
1995 EC Data Protection Directive, and wrote a book, Data Protection
Law in Practice in the EU (2005); and since when he has carried out
many studies in the area for the European Commission, the UK Information
Commissioner, the Council of Europe and others.
Since 2004, he has been a member of the Advisory Council of the Foundation
for Information Policy Research (FIPR), the leading UK think-tank in
this field, and has worked closely with other non-governmental
organisations such as Privacy International, Liberty, No2ID,
and at the European level the European Digital Rights Initiative,
EDRi, and its member organisations. He is also closely involved with the
directorates, offices and units in the EU and the COE that are responsible
for or interested in data protection and related issues, including the
EU's unit responsible for data protection, the COE unit for data
protection and cybercrime, and the COE Commissioner for Human Rights. In
recent years, data protection and information policy issues that had
earlier been seen as rather specialised and technical have become directly
linked to more traditional human rights issues, e.g., in relation to
Internet surveillance and censorship, compulsory retention of
communications data, "profiling", and the use of social media in political
activism. They also relate to global Internet governance, the
transnational fight against cybercrime, and corporate responsibilities.
From 2004, Korff worked closely with Dr Ian Brown, Associate Director of
the Cyber Security Centre and Senior Research Fellow at the Oxford
Internet Institute of the University of Oxford. The strength of their
research lies in linking Korff's legal knowledge of human rights and data
protection law, with the technical and governance/policy insights of Brown
and other experts in FIPR and other NGOs just mentioned. With them, Korff
has written on Childrens' databases, The Database State, the
Anti-Counterfeiting Agreement (ACTA), the need for a new EU data
protection regime in the light of new technologies, and on human
rights-compatible rules on technologies used in the fight against
terrorism and to monitor political activities online and in social media.
Key researchers:
Douwe Korff, Professor of International Law, London Metropolitan
University http://www.londonmet.ac.uk/depts/lgir/law/staff/professor-douwe-korff.cfm
SSRN page: http://ssrn.com/author=1098072
Ian Brown, Associate Director of the Cyber Security Centre and
Senior Research Fellow at University of Oxford's Oxford Internet Institute
http://www.oii.ox.ac.uk/people/brown/
SSRN page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=892424
References to the research
Digital Freedoms in International Law: Practical Steps to Protect
Human Rights Online (with Dr Ian Brown of the Oxford Internet
Institute), Study for the Global Network Initiative, June 2012 (54 pp.)
Available from Global Network Initiative website (also for the executive
summary): http://www.globalnetworkinitiative.org/resources/index.php
Opinion on the compatibility of the Anti-Counterfeiting Trade
Agreement (ACTA) with the European Convention on Human Rights &
& the EU Charter of Fundamental Rights (with Brown). Legal
opinion prepared at the request of the Greens/ European Free Alliance
group in the European Parliament, 68 pp. plus attachments. Available from
Greens/EFA page on "ACTA and fundamental rights" (scroll to the
Comparative study on different approaches to new privacy challenges,
in particular in the light of technological developments (with Brown
and a world-wide team of data protection experts). Reports and papers
produced for this study by Professor Korff as the lead drafter, but with
Dr Ian Brown et al.: Final Report (56 pages), with a 5-page
Executive Summary. Written by Professor Korff as the sole
author: Working Paper No. 2: Data protection laws in the EU: The
difficulties in meeting thechallenges posed by global social and
technical developments (120 pages); Country Reports on France, Germany
and the United Kingdom (respectively 54, 60 and 73 pages).
Study commissioned by the European Commission Available from
http://ec.europa.eu/justice/policies/privacy/studies/index_en.htm
Key grants: Above-mentioned work commissioned by the organisations
mentioned.
Details of the impact
(a) Impact on EU data protection policy:
The 2010 Korff-Brown "New Challenges" report was specifically
commissioned by the EU to inform its thinking on "post-Lisbon" reform of
the EU data protection regime, and this was clearly reflected in the
November 2010 Commissions Communication on the issue (see at 5, below).
Subsequently, many of the issues identified in the report — e.g., lack of
harmonisation, lack of consistent enforcement, the need to deal with new
technoligies and the Internet — were addressed in the 2012 draft EU Data
Protection Regulation, currently in the process of being adopted, that
will replace the current EC Data Protection Directive, often in ways
suggested in the report.
(b) Impact on the work of the CofE Data Protection & Cybercrime
Unit:
Korff's research has also impacted on the work of the Council of Europe's
Data Protection and Cybercrime Unit and of the CofE Commissioners for
Human Rights.
DP&C Unit: In 2012, Korff advised the DP&C Unit on the
human rights implications of the Cybercrime Convention. In 2013, he was
asked to advise on the Unit's priorities in relation to the Internet.
Commr for HR: In 2008, the then Commissioner for Human Rights,
Thomas Hammerberg, published an "Issue Paper" on Privacy &
Terrorism, written by Korff, as the official statement of the
Commissioner's position. In 2011, he included a chapter on Social
Media & Human Rights, written by Korff and Brown, in another
major CofE publication. Korff continues to advise the Commissioner's
office on data protection and Internet-related matters, including in 2013
training Commissioner's staff on these issues. The current Commissioner,
Nils Muižnieks, continues to involve Korff closely in relevant work. Later
in 2013, Korff will write an "Issue Paper" for this Commissioner, on The
Rule of Law on the Internet.
(c) Impact of the Opinion on ACTA:
Korff largely wrote The Opinion on ACTA, influential in (1) Europe-wide
civil society campaigns against the Agreement, and (2) helping to defeat
the Agreement in the European approval process. NGO websites disseminated
The Opinion, and it was cited in the (reluctant) referral of the Agreement
by the European Commission to the ECJ, specifically on the issue addressed
in the Opinion: the (in)compatibility of the Agreement with EU human
rights principles. The Opinion was also cited in the Third Party (Amicus)
Brief that a leading civil society group, FFII, tried unsuccessfully to
the Court.
(d) Impact of the GNI " Digital Freedoms "
report:
The 2012 Korff-Brown report for the Global Network Initiative on Digital
Freedoms in International Law has been widely discussed in Internet
governance forums, including EuroDIG, the European part of the global
Internet Governance Forum (IGF).
Sources to corroborate the impact
Re impact of the " New Challenges "
report on EU data protection policy:
See in particular the EU Commission Communication to the Parliament and
the Council (and others) on A comprehensive approach on personal data
protection in the European Union, Brussels, 4.11.2010, COM(2010)609
final, more specifically the very first section whose heading reflects the
report: New Challenges for the Protection of Personal Data, and
the text of which deal with the main issues addressed in the Korff-Brown
report; it is expressly referred to in footnote 4 on p. 3. See:
http://ec.europa.eu/justice/news/consulting_public/0006/com_2010_609_en.pdf
Re impact on the work of the CofE Data Protection &
Cybercrime Unit:
The
impact of Korff's research on the work of the Unit is mainly behind the
scenes, e.g., through notes such as this one on The use of the
Internet & related services, private life & data protection:
trends & technologies, threats & implications, 2013:
http://www.coe.int/t/dghl/standardsetting/dataprotection/tpd_documents/KORFF%20-%20Trends%20report%20(final)%20-%20March2013%20(14%2005%202013).pdf
or the making of presentations or moderating of sessions at relevant
expert meetings, such
as this one in Baku, Azerbadjan, in November 2012 (a "pre-IGF"
conference on Article 15 [the human rights provision] of the Cybercrime
Convention):
http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/cy_project_Phase3_257
1/2571_IGF_WS_art15_outline_v8_31oct12%20(2).pdf
Re impact on the work of the office of the CofE
Commissioner for Human Rights:
See
the 2008 "Issue Paper" on Protecting the Right to Privacy in the Fight
Against Terrorism (one of the four Korff outputs in this REF submission)
through which the then Commissioner for Human Rights adopted the text,
written by Douwe Korff, as a formal statement of his own position. As
noted in section 4, a further "Issue Paper" is being written for the
current Commissioner, Nils Muižnieks, in 2013. Korff's research also again
has significant behind-the-scenes impact on the work of the Commissioner's
office (see Testimonials, below).
Re impact on the defeat of ACTA:
Korff did not himself take an active part in the "Stop ACTA" campaign
(other than co- presenting the Korff-Brown Opinion at a press onference at
the European Parliament), but the Korff-Brown Opinion was widely used by
civil society groups campaigning against the Agreement, published on or
linked to at many civil society websites, e.g.
A Google search for "+ACTA"
"+Opinion" "+Korff" on 26 August 2013 produced 189,000 results. The
Opinion was also referred to in the (reluctant) referral of ACTA by the
European Commission to the ECJ and in the Third Party (Amicus)
Brief that the leading campaigning organisation, the Foundation for a Free
Information Infrastructure (FFII) sent to the ECJ: see: http://people.ffii.org/~ante/acta/FFII-ACTA-amicus-brief-2012.pdf
Re impact of the GNI "Digital Freedoms" report:
Simultaneous with its release in Washington DC (attended by Dr Ian Brown),
the report was presented by Korff at the most important European Internet
Governance forum, EuroDIG, in Stockholm in 2012, where he also moderated
one of the plenary sessions, on Online Privacy: One Size Fits All?,
see:
http://www.eurodig.org/eurodig-2012/programme
A further presentation was made in London on 20 June 2012. The report was
widely reported, commented on and blogged. A Google search on 26 August
2013 provided 4,120 results, including:
http://globalnetworkinitiative.org/news/new-report-outlines-recommendations-governments-companies-and-others-how-protect-free
http://b2fxxx.blogspot.co.uk/2012/06/gni-digital-freedoms-report.html
http://clpr.org.in/gni-report-on-digital-freedoms-in-international-law/
http://netizenproject.org/2012/06/18/global-network-initiatives-digital-freedoms-report/
http://katewestmoreland.wordpress.com/2012/06/15/digital-freedoms-in-international-law-at-last-a-great-conversation-starter-in-the-field-of-law-enforcement-human-rights-and-technology/
http://www.slideshare.net/blogzilla/digital-freedoms-in-international-law
http://www.ihrb.org/pdf/eu-sector-guidance/Global-Network-Initiative.pdf