Is There a Right not to Participate in Digital Technology?
Should we be allowed to live without computers? Maybe, even, without electric power?
According to recent polling conducted by the Arcep (the French telco and ISP regulator) and the CREDOCBerhuet, Solen, Lucie Brice-Mansencal, Patricia Croutte, Eliot Forcadell, Charlotte Millot and Jörg Müller, 2023. Baromètre de l’Arcep et du CREDOC, see: … Continue reading, in 2022, still about 8% of French residents do not use the Internet at all. That was almost 5,5 million peoplebased on population statistics published by INSEE: https://www.insee.fr/fr/statistiques/5225246. Even if only 1% of people aged between 18 and 24 declare they do not use the Internet at all, that would still realistically concern thousands of young individuals across the countryI could not find overall demographic statistics on the population aged between 18 and 24, as the INSEE uses different categories, so I do not have an estimate of how many individuals are concerned in … Continue reading.
There are many reasons to choose to go offline. Doing a quick search on any search engine, one can find a lot of articles describing the (real or supposed) merits of doing a “digital detox” diet. As highlighted by Arcep-CREDOC study. One can also think of people refusing to use certain technologies for religious purposes, the Amish or the Old Believer Orthodox communities being well-known examples. Finally, some people simply do not have the means or the skills to access the Internet. It is worth noting that previously cited report shows that only 60% of people living in France without any diploma have a computer at home, compared to 89% as an average among the French population in general.
For a very long people, the focus of constitutionalists was on the right to access the Internet. Such a right is based on the right to freedom of expression, which, according i.a. to article 19 of the UN’s Universal Declaration on Human Rights, includes the right “receive and impart information and ideas through any media and regardless of frontiers.” But do we have a right to be offline? In other words, can we be forced, either by the state or by private parties, to use computers and the Internet, even if we do not want to?
Surprisingly little has been devoted to this topic in the literature so far. So far, I have only identified one panel at the Computers, Privacy and Data Protection conference (CPDP) in 2016 in BrusselsMittelstadt, Brent, Tobias Matzner, Ero Balsa, Katleen Gabriels, Hille Koskela and Carsten Ochs, 2016. CPDP 2016: Is there right for offline alternatives in a digital world? See panel recording at: … Continue reading, a 2021 blog post by Dariusz Kloza (2021)Kloza, Dariusz. 2021. “It’s All About Choice: The Right Not to Use the Internet”, Völkerrechtsblog. See: … Continue reading and, finally, a book chapter by Murat Karaboga, Tobias Matzner, Hannah Obersteller and Carsten Ochs (2017)Karaboga, Murat, Tobias Matzner, Hannah Obersteller and Carsten Ochs. 2017. “Is There a Right to Offline Alternatives in a Digital World?”, in: Leenes, Ronald, Rosamunde van Brakel, Serge … Continue reading. In his 2019 book called L’Utopie Déchue, Félix TréguerTréguer, Félix. 2019. L’Utopie Déchue. Une contre-histoire d’Internet. Paris, Fayard. For an English language book review, see, e.g.: … Continue reading, ends his accounts of the constant struggle between freedom and control in the online public sphere by asking whether we should destroy computers. Indeed, for an increasing number of people, IT is morphing into a tool of control, contradicting the original promise of a “Cyberspace” free of states equated to “weary giants of flesh steel” as described by John Perry Barlow in his famous declarationThe Declaration of the Independence of Cyberspace can be read here: https://www.eff.org/fr/cyberspace-independence. But he does not really explore answers to this question.
This working paper is an attempt at taking this question seriously. It has been presented on Sept. 29, 2023 in a keynote at a conference in Szeged (at the Álom és Valóság conference), and may provide the basis for future research and publication. Given that there is not even enough available literature on the topic to do something as basic – yet indispensable – as a literature review, instead, it freely explores the following questions:
where does this idea of living offline come from? Where is the real-life harm that it aims at addressing, using the tools of human right law?
Is there a right not to use information technology (IT)? This question will be dealt with in two steps:
First, is there such a right under the current state of information technology, which itself is often non-compliant with existing legal norms, such as data protection law?
Secondly, is there a general right to be offline, even if we posit the existence of hardware and software that is perfectly accessible, non-discriminatory, compliant with all laws, including data protection, environmental protection, security etc.?
Finally, in the absence of such a right under current law, should we recognise such a right and why?
Where Does the Idea Come From? And Where is the Harm?
For a long time, activists and then official public policies have strived to protect both a negative and a positive right to access the Internet. This follows an already ancient (by IT standards) trend, at least in France. Every since a law from 1996Loi du 26 juillet 1996 de réglementation des télécommunications, article 8, there has been an article 35-5 in the Code of Posts and Telecommunications which states that access to digital services, including packet switching services (read: TCP/IP and Internet), must be part of the universal service. Later, in 2009, the Constitutional Council ruled that accessing the Internet is an essential part of exercising the right to freedom of information, which includes the right to access the said informationC. Constitutionnel, 10 June 2009, decision 2009-580 DC, “Hadopi”. At a European level, this was recognised by the European Court of Human Rights (ECtHR) in 2012ECtHR 18 December 2012, Ahmet Yıldırım v. Turkey, 3111/10; see also ECtHR 17 January 2017 Jankovskis v. Lithuania, 21575/08. Finally, in 2016, back in France, the legislator aimed at turing a negative right into a positive one by including many articles in the Digital Republic Act aiming at improving access to the Internet, including in rural areas, by disabled people, or by people unable to pay billsSee Title III of Loi 2016-1321 du 7 octobre 2016 pour une République numérique.
Back to the European level, the recently adopted – but legally non-binding – European Declaration on Digital Rights and Principles for the Digital DecadeSee: https://digital-strategy.ec.europa.eu/en/library/european-declaration-digital-rights-and-principles, signed by the European Commission, the Council and the Parliament on 23 February 2023, proclaims that “the digital transformation affects every aspect of people’s lives [and] offers significant opportunities for a better quality of life, economic growth and sustainability” (Recital 2). It therefore calls for a “digital transformation that leaves nobody behind” (article 2). It does talk about choice, in article 10, but it is limited to a choice in which “everyone should be able to effectively and freely choose which [emphasis added] online services to use” (article 10). Nowhere does it state that participation in the big “Digital Society” should be free, and therefore, that there should be a choice to offline alternatives.
At an international level, in the field of development and development policy, access to the Internet is seen as an essential growth factor. There is a lot of emphasis on equipment, at all costs, and often without a lot of thought put into the ways in which granting access to IT is doneSee: Rossi, Julien. 2017. « Les enjeux de l’infrastructure numérique dans les politiques de développement ». In: Stabilité, intégration, coopération et développement. Szeged, Centre … Continue reading
Just recently, together with Clément Perarnaud, Francesca Musiani and Lucien Castex, in a report to the STOA Panel of the European Parliament, we argued that Internet fragmentation could be construed as a restriction to the fundamental right of freedom of expression, as protected under art. 10 ECHRPerarnaud, Clément, Julien Rossi, Francesca Musiani and Lucien Castex. 2022. ‘Splinternets’: Addressing the renewed debate on internet fragmentation. See: … Continue reading.
So, if it is so important to provide access to the Internet (and it is), then why this interest in defending the right not to be online?
First of all, there is no contradiction. Just because the ECHR protects, for example, the right to have children should a couple so desire, it also protects the right not to have children should one not desire to have childrenECtHR 10 April 2007 “Evans v. UK” 6339/05. Similarly, just because we should have access to the Internet if we want to does not mean that there is a right from anyone to force us to be offline.
Secondly, a lot of different more-or-less recent events have shed light on harms that may arise from being forced to be online. We will come back to some of them in the last section of this working paper, because they support arguments in favour of a general right to be offline.
As noted by Anne Bellon (2023)Bellon, Anne. 2023. L’Etat et la Toile: Du développement de l’internet à la numérisation de l’action publique. Vulaines sur Seine, Éditions du Croquant., public policy in the field of IT has shifted from supporting the development of Internet infrastructure and services, to the integration of digitisation as part as public administration reforms inspired by the New Public Management paradigm. In practice, this means that “dematerialising” public services is seen as a cost-cutting measure even though, as noted by the French Human Rights Ombudsman (Défenseur des Droits), no serious evaluation of the savings generated by this shiftDéfenseur des droits. 2023. Dématérialisation des services publics : trois ans après, où en est-on ?. … Continue reading. It is likely that, in fact, shifting public services from “brick-and-mortar” services where citizens can interact with real human beings, to online-only services, has shifted the burden and a lot of the cost of public administration to citizens, and created a lot of discriminatory harms. It is also one of the reasons pointed out by the Arcep-CREDOC report of 2023 on Internet use in France of why people could not imagine living without a computer:
Arcep-CREDOC, 2023, p. 21
This means that the state is clearly a contributor to the phenomenon in which, now, more than half of the French population states that they would not be able to spend a whole day without accessing the Internet (Arcep and CREDOC, 2023, p. 235). But beyond the fact that – we will come back to it in the last section – feeling addicted and forced to be online may not be such as a nice feeling, there are concrete examples of harms that can be easily documented. We will focus on two kinds of harm: discrimination, and surveillancePervasive surveillance is, in and by itself, harmful, as demonstrated by Adam Moore in: Moore, Adam. 2003. “Privacy: Its Meaning and Value”, American Philosophical Quarterly, vol. 40, nr. 3, pp. … Continue reading.
In 2019, an elderly blind priest was fined 100 € for boarding the train without a ticketSee: https://www.francetvinfo.fr/economie/transports/sncf/jura-un-pretre-malvoyant-ne-peut-pas-acheter-son-billet-de-train-sur-une-borne-il-ecope-d-une-amende-de-100-euros_3510465.html. There were no open ticket offices nor ticket machines where he had boarded his train, and he was unable to use the railways’ mobile app. The national railway company, owned by the state, had recently decided to stop selling tickets onboard, and when the priest told the conductor he wanted to buy a ticket, the latter told him he had no choice but to fine him. This is a concrete example where forcing somebody who is unable to use a non-accessible application without providing any alternative is clearly discriminatory. In this situation, the harm is that an elderly, visually impaired person is prevented from being able to travel using public transportation.
In 2022, the French government introduced “Mon Espace Santé” (My Health Space), a new online application giving access in a centralised manner to one’s health data, to be shared with health professionnals needing access to the information. It was supposed to be created based on people’s consent, but the consent mechanism implemented was in fact an opt-out mechanismMokadem, Hakim. 2022. “Consentement, protection des données… à peine lancé, “Mon Espace Santé” déjà critiqué”. Marianne. … Continue reading. More importantly, in relation to this working paper’s topic, as of the 31st of August 2023, this crucial service was still “partially non-compliant” with accessibility guidelines:
Screenshot from https://www.monespacesante.fr/accessibilite taken on the 31st of August, 2023.
Once again, the discriminatory consequences of imposing a health data sharing system that is not compliant with accessibility guidelines are quite obvious, and it is baffling to see that the French government blantatly ignores – without any consequences – the provisions of article 47 of law nr. 2005-102Loi n° 2005-102 du 11 février 2005 pour l’égalité des droits et des chances, la participation et la citoyenneté des personnes handicapées creating accessibility obligations for online public services, but also of relevant provisions of the criminal codeEspecially article 225-1 of Criminal Code, which forbids discriminations i.a. on the grounds of their handicap..
In an article published in 2021 on research conducted by the French retirement fund (CNAV), Sabrina Aouici and Malorie PeyracheAouici, Sabrina and Malorie Peyrache. 2021. “Le soutien d’un tiers pour limiter le non-recours face à l’e-administration : enjeux et limites”, Retraite et société, nr. 87, pp. 191-202 point out that the shift to online-only public administration creates a major risk of people, especially elderly people, renouncing their rights or having to rely on the assistance of relatives. They indicate that according to internal data, in 2020, up to 74% of retired people in France are unable to use the Internet to conduct administrative procedures.
In 2022Délibération n° 2022-068 du 9 juin 2022 portant avis sur un projet de décret autorisant la création d’un traitement automatisé de données à caractère personnel pour le contrôle de … Continue reading, the French Data Protection Authority (CNIL) warned the government that forcing pensioners living abroad to use an app to prove their existence was likely to create discriminatory situations. It would, according to the CNIL, create difficulties for about 700 000 people when trying to prove their existence to exercise their right to receive their retirement pension. It therefore insisted on the importance for such an online option to remain an freely chosen option. Based on the study by Aouici et al. Aouici, Sabrina and Malorie Peyrache. 2021. “Le soutien d’un tiers pour limiter le non-recours face à l’e-administration : enjeux et limites”, Retraite et société, nr. 87, pp. 191-202, that state that 74% of elderly people find it difficult to use online public services, this figure could be much higher (over 1 million persons would thus be affected).
Another example of widespread discrimination was, in the field of education, when classes went fully online during the Covid pandemic, despite the fact that, as previously mentioned, studies such as the one conducted by Arsep and CREDOC (2023) point out wide social inequalities in access to IT equipment.
But illegimate discrimination is not the only negative outcome of forced digitisation. Another one is widespread surveillance. Indeed, there are a lot of example where public authorities are forcing people to use technologies that snoop on their users. Let’s unpack a few examples.
The EU’s eCall RegulationRegulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 … Continue reading, discussed by Karaboga et al. (2017), creates an obligation for vehicles sold after 31 March 2018 to be equipped with geolocating equipment able to call emergency services if an incident occurs. This is undoubtedly a very useful safety mechanism, but it does mean that all modern cars now have on-board geolocation capabilities. Even if these are strictly regulated by the eCall regulation, they provide a base upon which one could imagine the future deployment of surveillance capabilities, should such restrictions be relaxed in the future. Recently, the Mozilla Foundation alerted about the pretention modern cars have to collect and process all kind of data, including health and sexual dataSee here: https://foundation.mozilla.org/fr/privacynotincluded/articles/its-official-cars-are-the-worst-product-category-we-have-ever-reviewed-for-privacy/.
In Budapest – just as, presumably, a growing number of cities – people have the option (for now) to buy tickets for local public transportation using mobile apps. While, in the past, it was possible to buy paper tickets anonymously, it is now compulsory to create a user profile before buying a ticket on BudapestGO. Furthermore, this application can only be used with Android or iOS. This means that one must have the means to buy a smarphone equipped with a modern version of those operating systems. It also means that users are forced to accept the personal data processing practices of Google and Apple. As shown by conclusions reached in the past by some data protection authoritiesSee, for Google: CNIL, Délibération SAN-2019-001 du 21 janvier 2019, and Conseil d’État 19 juin 2020, Google contre CNIL, nr. 430810, such practices do not always fully comply with applicable data protection law… Similar things can be said in France, in relation to access to public railway services from railway stations no longer equipped with physical ticket selling points.
Another very hot topic, very well discussed by Brett Scott in CloudmoneyScott, Brett. 2022. Cloudmoney: Cash, Cards, Crypto and the War for our Wallets. Bodley Head., is the forced disappearance of cash. In France, refusing to accept legal tender cash in exchange for goods of services is actually a minor criminal offense, defined in article R642-3 of the Criminal Code. There are exceptions. For instance, in most cases, it is no longer legal to pay more than 1000 € cash in FranceArticle D112-3 of the Code monétaire et financier.. Yet, for some reason, some cafeterias owned by the public student service agency (CROUS) in France refuse cash, and only accept credit cards or a special “Izly” electronic payment method. Izly – which is operated by S-Money, a subsidiary of Natixis, a major private bank – is a system in which each university user (students and staff) receive a card and an account that they can top up. It also comes with a mobile application, which has been denounced in 2017 by journalists who showed it was illegally snooping on student location data for advertising purposesUntersinger, Martin. 20 October 2017. “Izly, l’appli du Cnous qui géolocalise des étudiants et renseigne des sociétés publicitaires”, Le Monde, … Continue reading.
All of these public policy actions aimed at encouraging digitisation creates an environment where people are strongly incenticised in buying up-to-date digital equipment. This includes so-called “smart” devices which are able to record and transmit data, and may even be remotely activated. Privacy International has, for a while, strongly opposed the use of what they call “government hacking” in which states – often illegally – gain access to people’s devices for a variety of reasonsSee their working paper: https://privacyinternational.org/long-read/84/why-we-are-so-concerned-about-government-hacking-surveillance. The Pegasus scandal was a prime example of governments using off-the-shelf software from private companies to hack into people’s devices without their knowledge. This has been used in Hungary against journalists, and in Spain against politicians. It has also been used by thriving democracies like Saudi Arabia, which used it to spy on Jamal Kashoggi’s familysee: Manach, Jean-Marc. 2021. “NSO : Pegasus aurait aussi espionné le téléphone de la femme du journaliste assassiné Khashoggi”, Next-Impact, … Continue reading. In effect, this means that some European governments have co-funded (by buying it) spying technology used by authoritarian regimes. But, more to the point for this working paper, this kind of spying technique can only work if people willingly equip themselves with devices that can be accessed remotely.
It is exactly this kind of technique that the French government wants to legalise – albeit with a few safeguards, such as the compulsory involvement of the judiciary – by allowing the “remote activation” of devicesSee article 3 of Projet de loi d’orientation et de programmation du ministère de la justice 2023 – 2027; as of August 31, 2023, this bill was still under negociation between the National … Continue reading.
All of this shows that forcing the adoption and the use of IT is indeed likely to generate harms, at least in terms of discrimination and surveillance. Is there, in positive law (at least in France, or based on ECtHR case law), anything resembling a right to be offline? In other words, can I refuse to use an online service? Can I ditch my smartphone, cancel my Internet access plan, and pledge an oath never to use a computer ever again? Not that I, personnally, would want to (computers are way too much fun to tinker with), but could I, at least in theory?
Is There a Right to Be Offline…
To answer the questions put forward just above, I believe it is necessary to distinguish between two cases:
can I opt-out from technology that is – as is often the case in practice – non-compliant with one kind of legal norm or another (let’s say, to take an easy one, data protection law)?
can I refuse the use of an online service or device even if the said service or device is fully compliant with all applicable law?
In this case, as we shall see, this may depend on whether or not can I can actually use the device based on personal circonstances. Or if I can just refuse for the heck of it.
Let’s begin with the first one, because it’s an easy one.
…In a Non-Compliant IT Environment?
What kind of laws does IT software and hardware often infringe? As we have seen, accessibility guidelines, even when mandatory, are not always respected. Furthermore, given that this is just a working paper and that nobody is going to ask me to reduce the length of my article while at the same time support my claims to the obvious in order to be publishedI am complaining, but I do believe that there is value in the peer-review process. I am just enjoying the freedom that comes with publishing a mere bunch of unscientific thoughts to my own personal … Continue reading, let us just all admit that most commercial software that even public services rely on just does not comply with data protection law. We will examine both. There may be other laws that would be worth examining. Maybe consumer law? Or environmental law? For simplicity’s sake, I will just focus on these two because they are sufficient in demonstrating that there is, in practice, given the prevalence of non-compliant IT products, a right to an offline alternative.
Accessibility and Non-Discrimination
In 2021, the French government adopted a Decree and two ordersDécret nr. 2021-313 of 24 March 2021, Arrêté du 27 avril 2021 pris en application de l’article R. 431-2 du code de l’entrée et du séjour des étrangers et du droit d’asile … Continue reading, which forced foreigners wishing to apply for residency to apply using an online procedure. Several NGOs referred these decisions to the State Council, asking for the invalidation of that decision.
In a key decision adopted in 2022Conseil d’État, 3 June 2022, decision nr. 452798, Conseil national des barreaux et autres, the State Council ruled that there was no constitutional provision forbidding the executive from forcing the use of an online procedure, nor was there any rule stating that it could only do so when explicitly authorised by an act of Parliament. Furthermore, the French supreme judges of the administrative order did not find any supranational norm, not even article 14 of the ECHR on the principle of non-discrimination, to forbid, in principle, the government from forcing people to use online services to complete administrative procedures (§8 of the decision). It did, however, indicate that such a general obligation could only be legal “under the condition that public service users are allowed normal access and able to exercise their rights”Translated from French. Original text: “à la condition de permettre l’accès normal des usagers au service public et de garantir aux personnes concernées l’exercice effectif de leurs … Continue reading This means that the government has to provide “support for people who do not possess the necessary digital equipment or experience difficulties in their use or in the accomplishment of administrative procedures”“un accompagnement les personnes qui ne disposent pas d’un accès aux outils numériques ou qui rencontrent des difficultés soit dans leur utilisation, soit dans l’accomplissement des … Continue reading (§10 of the decision). This can mean that the state has to provide an alternative solution “for cases where certain users would find it impossible to use the online procedure despite this support, due to reasons arising from the design of the tool or its functioning”“[…] pour le cas où certains demandeurs se heurteraient, malgré cet accompagnement, à l’impossibilité de recourir au téléservice pour des raisons tenant à la conception de cet outil … Continue reading (§10 of the decision).
In this case, the government’s decision to impose the use of an online procedure for residency permit applicants was deemed illegal by the State Council, because, at the time it adopted its decisions, it had provided neither support nor alternative solutions for people who, due to their individual circumstances and the design of the digital tool, were unable to complete the online procedure (§11 and 12 of the decision).
Given that, at the time of conducting my exploratory researchThis part was written on Sept. 1st, 2023, the website where foreigners can apply for residency in France was still only about 60% compliant with accessibility standards, we may safely conclude that the state has to provide online alternatives at least to people who are unable to use the service because of this non-compliance.
Screenshot taken from https://administration-etrangers-en-france.interieur.gouv.fr/particuliers/#/declaration-conformite-rgaa on Sept. 1st, 2023.
Finally, in its 2022 opinion on the government’s project to allow recipients of French state pensions to prove their existence using an online application, the CNIL (2022) pointed out that the Ministry of Health should provide an information to users telling them that this is just an option, and that there are offline alternatives that they can use, should they be unable to use the app“[…] elle invite le ministère à faire apparaître explicitement dans le projet de décret le caractère facultatif du recours au dispositif ainsi que l’information annuelle des personnes … Continue reading
Another area where a lot of software does not comply with the law is personal data protection. The right to the protection of personal data derives from article 8 of the ECHR on the right to privacy, and it is protected as a distinct right under article 8 of the EU’s Charter of Fundamental Rights (hereinafter: the Charter). Under French law, it derives from article 2 of the 1789 Declaration of the Rights of Man and of the CitizenSee: Cons. const., 23 July 1999, nr. 99-416 DC.. Its pratical provisions are laid down in the EU’s General Data Protection Regulation (GDPR) and in the regularly updated 1978 French Informatics and Freedom ActLoi n° 78-17 du 6 janvier 1978. To avoid making this already lengthy working paper even lengthier, I will not go into details of why I contend that most software used on an everyday basis is non-compliant. The Google Android and Izly cases, which were previously cited, are, in my opinion, sufficient illustrations.
Does data protection law provide for a right to be offline, when there is no compliant online service available for a given purpose?
The answer given by Karaboga and al. (2017) is that “[…] whereas we do not, cannot have a right to lead a non-digital life in contemporary society, still we have a right to offline alternatives – precisely because we cannot claim a right live within our socio-technical networks without fallying pray to them” (Karaboga et al., 2017, p. 43). This is a rather convoluted answer. I believe that, here, based on data protection law, when there is no compliant solution, the answer is very clearly a resounding yes.
There are two reasons for this.
First of all, as reminded by Karaboga et al. (2017), “in a world of automated data processing, being offline is the most genuine form of the right to respect of private life with regard to data protection […]. So to speak, it is the ‘default setting’. Any changes to the ‘default’ need justification.” (Karaboga et al., 2017, p. 43). Indeed, two of the key principles of data protection, as provided in article 5 of the GDPR and in other international instruments, such Convention 108 of the Council of Europe, are data minimisation and purpose limitation, which, in a nutshell, can me summarised as a mandate to respect the principle of proportionality (De Marco, 2018)De Marco, Estelle. 2018. Comparative study between directive 95/46/EC & the GDPR including their relations to fundamental rights. Deliverable D2.10, project INFORM, JUST-JTRA-EJTR-AG-2016.
According to such a principle, a data controllerA data controller is a person or a set of persons acting as joint controllers who determine the means and ends of a data processing operation. must always prefer the least-invasive solution, or at least provide it as an alternative to a more data-hungry offer which can proposed to a data subjectUser in data-protection-speak. because, for example, it is more convenient. In cases where a given processing operation, like a new online public procedure, may, if incorrectly implemented, have consequences for the rights and freedoms of natural persons, then there is an obligation to conduct a data protection impact assessment. In its previously cited 2022 opinion on a proposed application to allow recipients of French state pensions living abroad to prove their existence, the CNIL found several shortcomings in the Ministry of Health’s impact assessment, in particular with regards to this proportionality aspect.
In the example of payment at French public university cafeterias with the privately operated Izly system, which used to snoop on student location data through a mobile app for targeted advertisement purposes, we have a clear example of a processing operation which, especially in the absence of an offline solution, is disproportionate. Even choosing to pay using a credit card instead of the Izly system creates more personal data collection than an offline method. Indeed, when one pays for coffee using cash, the bank – and all the other payment intermedieries – do not collect this information. Therefore, forcing people to use either the Izly system or a credit card means forcing people to provide more data to different controllers than is strictly necessary, by comparison to a perfectly usable and practical non-digital solution, that the law, in France, as we have seen, supposedly guarantees. Generally speaking, the pervasiveness of data collected for advertisement purposes creates a lot of security issuesSee: Olejnik, Lukasz, Tran Minh-Dung and Claude Castelluccia, 2013. “Selling Off Privacy at Auction”, hal-00915249, https://inria.hal.science/hal-00915249/document which appears to be exploited by intelligence agencies from nondemocratic countriesBenjakob, Omer. 2023 “Revealed: Israeli Cyber Firms Have Developed an ‘Insane’ New Spyware Tool. No Defense Exists”, Haaretz, 14 Sept. … Continue reading.
It should however be noted that just because a procedure or a service is offered online does not mean that it collects more data than necessary, or more data than an offline alternative. However, often, such services rely on an underlying technical architecture that is not necessarily compliant with all other data protection requirements.
This is the case, for example, when one is forced to buy a transportation ticket using an app that runs only on given operating systems, when those operating systems do not comply with data protection law. As we have seen, in France, Google was fined 50 million euros in 2019 for failure to obtain valid consent for ad targeting purposes through its mobile operating systemCNIL, Délibération SAN-2019-001 du 21 janvier 2019, and Conseil d’État 19 juin 2020, Google contre CNIL, nr. 430810.
When a service provider chooses to provide an application, which use is more or less compulsory, such as when attempting to buy a train ticket at a small, unmanned railway station in rural France, with no ticket vending machines, and which only runs on a given operating system, then it is easy to argue that the said service provider becomes a joint controller of the processing of personal data conducted by the said operating system. Indeed, the European Union’s Court of Justice (ECJ) has already ruled that a website owner including Facebook functionalities, or the owner of a Facebook page, were joint controllers with Facebook, because they took part in determining the means and ends of the processing operationsECJ 5 June 2018 Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein contre Wirtschaftsakademie Schleswig-Holstein GmbH, C-210/16; ECJ 29 July 2019 Fashion ID GmbH & Co.KG contre … Continue reading
In such a circumstance, it should be noted that data subjects (users) acquire a right to object to the processing of their personal data, based on article 21 of the GDPR. If, when the user objects, he or she is barred, for example, from using public transport, this would defeat the meaning and purpose of this article in the GDPR. Moreover, it would contradict the principle laid out in article L1111-1 of the Transporation Code, according to which “the organisation of transporation on the whole territory must satisfy the needs of users and make effective everyone’s right to move around freely and to choose one’s means of transportation, including for those whose mobility is reduced or who suffer from a handicap”“L’organisation des mobilités sur l’ensemble du territoire doit satisfaire les besoins des usagers et rendre effectifs le droit qu’a toute personne, y compris celle dont la … Continue reading. Finally, because it would force certain people into using a system that disregards their fundamental right to the protection of personal data, it could fall under provisions laid out in the Criminal code, on the violation of that rightSee articles 226-16 to 226-24 of the Criminal Code. or on violations of individual freedom by public authoritiesSee articles 432-4 to 432-6 of the Criminal Code.. Therefore, at least based on combined EU and French national law, a public transport company may not force people into using an application which can only be used if its user agrees to use software that does not comply with data protection law.
If the transporter – or any other service provider, for that matter – is a private person, then, still refusing to sell a consumer a good or a service for an illegitimate reason (like the refusal to use non-compliant software) is forbidden according to the Consumption CodeSee its article L121-11..
In the above cases, however, the burden of the proof would lie, in practice, on the data subject, notwithstanding the fact that article 24 (1) of the GDPR provides that it is up to the (joint) data controller(s) to prove compliance.
As a final sidenote, it may also be that forcing people to buy software from only two providers, instead of providing free and cross-platform online public services, could be construed as illegal state aid and/or as some infringement on competition law, but I lack expertise on this topic and – as stated in the introduction – this is a mere working paper which does not pretend being the fruit of any serious research project (rather, it aims at providing some kind of starting point).
…In a (Somewhat Utopian) Compliant IT Environment?
According to Karaboga et al. (2017), “using a positivist approach, it could be concluded that, at European level, there is no effective ‘right to remain offline’.” (Karaboga et al., 2017, p. 43). I would tend to agree. We have seen that, at least based on non-discrimination law and on data protection law, there is no general right to an offline alternative, unless in the presence of specific circumstances, such as the absence of a compliant solution to perform a certain task. The French State Council recently called in one of its report for the recognition of a right for public service users to revert to a non-digital alternative to digital public services, and for the systematic existence of such offline alternativesConseil d’État, 2023. “12 propositions pour réussir le dernier km de l’action publique”, 2023 Anunal Study, … Continue reading In an earlier case, the same Court had ruled that trade union membership could not be compulsory, given that article 11 of the ECHR also encompasses a “negative right of association”ECtHR 30 June 1993, Sigurður A. Sigurjónsson v. Iceland, 16130/90, §35. But he also found counter-examples, such as a case where the ECtHR ruled that one did not have a right to refuse buying a school uniform where such a dress code is mandatedECtHR 3 March 1986, Stevens v. United-Kingdom, 11674/85. Could there be, against this background, a general right not to be online, derived from the ECHR?
If a general right to be offline were to be derived from existing positive law, it would be, in my opinion, most likely to be found in the right to privacy. Indeed, the right to privacy “can embrace multiple aspects of the person’s physical and social identity”ECtHR 4 December 2008,S. and Marper v. the United Kingdom, 30562/04 and 30566/04, §66)). Furthermore, “in general terms, it secures to the individual a sphere within which he can freely pursue the … Continue reading. It includes the right to personal development and to develop contacts with other human beings. It is also linked to the concept of human dignity.
However, if I were to play the devil’s advocate, I could argue that – although I do not know of any serious study establishing this as a fact – switching to online services is more cost-effective, and that there therefore is a public interest to enforce online-only rules in certain circumstances. Although it is much harder to hide a stash of cash and gold bars than it is to hide bitcoins, it has also often been said that the fight against cash helps combat money laundering and similar ailments. Therefore, this would constitute a legitimate interest to limit one’s right to be offline.
And indeed, restrictions placed on the right to privacy can at times perfectly be deemed proportionate (or “necessary in a democratic society” to use ECtHR jargon). For example, let’s take the right to choose one’s appearance. At times, restrictions on this right have been ruled unnecessary. This was the case in a ruling on Lithuania’s ban on growing beards in prisonECtHR 14 June 2016, Biržietis v. Lithuania, 49304/09, §§ 54 and 57-58. Indeed, in this case, the “Court consider[ed] that the applicant’s decision on whether or not to grow a beard was related to the expression of his personality and individual identity, protected by Article 8 of the Convention, and that the Government has failed to demonstrate the existence of a pressing social need to justify an absolute prohibition on him growing a beard while he was in prison”§58 of the above case.. In SAS versus France, the Court has ruled that “criminalisation of the wearing of a full-face veil is a measure which is disproportionate to the aim of protecting the idea of “living together” – an aim which cannot readily be reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights”ECtHR 1st July 2014 SAS v France, 43835/11, §25. However, in a case brought by Gough against the United Kingdom, the Court did not rule that there was a right to appear naked wherever one wants to“Article 8 cannot be taken to protect every conceivable personal choice in that domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in … Continue reading).
State surveillanceSee i.a. ECtHR 2 September 2009, Uzun v. Germany, 35623/05 or even surveillance by employersECtHR 22 February 2018, Libert contre France, 588/13 have also, at times, been ruled as both necessary and proportionate.
Furthermore, to be ruled as a violation of the Convention, an infringement has to reach a certain degree of seriousness. In Diana Vučina versus Croatia, for example, the Court ruled that : “although [it] accept[ed] that the erroneous placement of the name of the Mayor’s wife next to her photograph might have caused some distress to the applicant, the level of seriousness associated with that erroneous labelling of her photograph and the inconvenience that she suffered do not give rise to an issue – neither in the context of the protection of her image nor her honour and reputation (see paragraph 31 above) – under Article 8 of the Convention”ECtHR 24 September 2009, Diana Vučina v. Croatia, 58955/13, §50)). Is the obligation to live online such a hard obligation that one – irrespective of one’s personal situation – should have a … Continue reading, the right to apply for adoptionECtHR 17 January 2021,.H. and others versus Russia, nr. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 27161/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, … Continue reading, reproductive rights – including the right not to have childrenECtHR 10 April 2007, Evans v UK, 6339/05 but only going as far as to cover abortion for health reasonsECtHR 20 March 2007, Tysiąc v. Poland, 5410/03, §107; ECtHR 16 December 2010, A B C v Ireland, 25579/05 §214, sexual orientation and sexual lifeECtHR 22 October 1981, Dudgeon v UK, 7525/76, and even the right to beg given that it can constitute a requirement to exercise one’s right to ask other people for helpECtHR 19 January 2021, Lacatus v. Switzerland, 14065/15. This list is far from completeIf one would like a more complete account, based on comparative law, of what the right to privacy covers, I would highly recommend Koops, Bert-Jaap, Bryce Clayton Newell, Tjerk Timan, Ivan … Continue reading but I believe it shows how the right to be offline could fit in. It is a right to make a personal decision about how one wants to live within the boundaries of the private sphere, and on how to connect with others. Furthermore, being deprived of certain opportunities, such as access to essential public services, would go against the principles of dignity of the human being, to which the concept of privacy is strongly relatedFor a philosophical account, see: Whitman, James Q.. 2004. “The Two Western Cultures of Privacy: Dignity Versus Liberty”, Yale Law Journal, vol. 113, nr. 6, pp. 1151-1221. For a reference to … Continue reading
To my knowledge – and based on a quick scan of what little I could find in extant literature – the ECtHR has never had to rule on the existence of a right to be offline, or of a right to be provided offline alternatives. However, we may deduce that there is some protection based on the right to privacy based on the following reasoning and existing case law.
The Lacatus case provides a relevant blueprint. In this case, the Court ruled that the applicant, who was illiterate and came from a very poor background, could not be deprived from the right to beg as that would seriously compromise her means of survival, thereby impact her dignityECtHR, Lacatus case, §56. The Strasbourg judges also declared that the notion of privacy covers a right to personal developmentECtHR, Lacatus case, §55..
However, it should be noted that in this ruling, the Court emphasised the particular situation of the applicant. It did not rule that there is a general right to beg on the streets. But there is a protection for people who, given their personal circumstances, do not have any other means of preserving their survival and some level of personal dignity and accomplishment.
Applying this reasoning to previously discussed examples related to the right to be offline:
The fine imposed on the blind priest who was unable to buy a ticket online and was not offered any alternative would probably be a violation of articles 8 and 14 ECHR.
If pensioners living abroad were not offered alternatives to an online service to prove their existence and keep receiving a state pension which they rely on to survive, this would most likely also be a violation of these two articles of the Convention.
If the State Council had not ruled that foreigners wishing to apply in France should be offered an offline alternative if their personal circumstances and the design of the online application form make it impossible for them to complete the procedure, there would probably also have been an infringement, most likely of both articles at the same time.
The obligation to pay using either Izly or credit card to buy a coffee at a university cafeteria in France is something that is not even provided for by law (given that stores have to accept cash unless the law states otherwise), but whether this potential violation of the right to privacy would reach the necessary threshold of seriousness, given that it does not, in practice, prevent one from buying coffee or snacks elsewhere, is debatable.
There would probably be a violation if a person, due to her or his personal circumstances, was unable to secure an electronic payment account, lived in a cashless society, and would therefore be completely unable to buy any good or service or receive any form of payment or alms.
Similar conclusions could be drawn for people who are unable to afford a computer, unless the state provides access to devices that they can use.
So, having tried to find cases in ECtHR case law that could provide a blueprint on how to examine cases were one is forced to use an online service, I would contend that, at least from the perspective of the right to privacy (combined with the right to non-discrimination) there is a right for an offline alternative, but it is mainly a right in dealings with public authorities or public services, and it is only afforded to people who are in a situation in which they are unable to access or use the Internet.
If we look beyond ECHR law, we can find some sectorial rules that allow offline alternatives. Although it is not consistently applied, French law does provide for a right to pay cash, at least, in most cases, under 1000€. In Austria, federal chancellor Karl Nehammer has proposed the inclusion of a right to physical cash in the federal constitutionHülsemann, Laura. 2023. Aug. 4. “Austrian chancellor: Right to use cash should be in constitution”, Politico Europe, … Continue reading. Back in France, we also have a “right to be offline” with regards to office duties, which have recently been introduced in the Labour CodeArticle L2242-17 7° of the Labour Code.. And we have thus seen that the combination of both non-discrimination and privacy law can create individual situations in which there is a right to an offline alternative.
But the main conclusion of all of this is that, especially in cases of digital services that are fully compliant with all existing legal obligations, there is simply no general right to be offline in current positive law.
Why? What is the Value of a Right to Be Offline?
So, should there be a right to be offline? And should it be a separate right from the already long list of fundamental rights that we already enjoy?
There are good reasons to avoid creating new fundamental rights. It can be confusing. Having too many may also create a system that becomes too rigid, and unable to adapt to changes in society. German constitutional provisions have at times been criticised for being too strict on monetary policyLike when the German Federal Constitutional Tribunal ruled, in 2020, that the European Central Bank’s Public Sector Purchase Programme was illegal, in BVerfG 5 May 2020 2 BvR 859/15, 2 BvR 980/16, … Continue reading or unable to properly adapt to the need for independent supervisory authorities, for example in the field of personal data protectionSee: ECJ 9 March 2010, European Commission v. Federal Republic of Germany, C-518/07. It can dilute protection, when some fundamental rights are already not necessarily sufficiently taken seriously. One may also be easily accused of trying to constitutionalise partisan political preferences. Finally, fundamental right instruments are “living instruments” and their interpretation can be adapted to new situations. The fact that the ancient right to freedom of information covers the right to access to a still fairly recent technology such as the Internet is a good example of thisOn this, see: De Hert, Paul and Dariusz Kloza, 2012. “Internet (access) as a new fundamental right. Inflating the current rights framework?”, European Journal of Law and Technology, vol. 3, nr. … Continue reading.
But there is no guarantee that any of the rights in the ECHR, or in the EU’s Charter, or in national constitutional instruments, will be interpreted in a way that amounts to the emergence of a full, unconditional right to be offline. Where one may be free to live without computers, far from the “digital life” and its tribulations, for as frivolous a reason as “for the heck of it.” So I do believe that this is a case where a new right needs to be created, at least in doctrinal writings, so that one day it may become law either through statutory decisions or, indeed, through living constitutional case law.
But why should there be a right to be offline “just for the heck of it?”
There can be many reasons. First, we need to look at why such a right may be useful, or inferred from some classical moral philosophy doctrines. Then we need to examine why this right must exist even “just for the heck of it.” In both cases, I will look at it from a personal perspective, and express opinions that do not have any pretention at scientificity. They serve an exploratory purpose into the value of a putative right to be offline.
An easy justification – that would absolutely not work in France’s secular legal system – is religion. Using electric power is forbidden during Shabbat for practicing Jews. Amish and Old Believer Orthodox Christians are examples of communities that shun modern technology for religious reasons. I am unfamiliar with their theology, but I do believe that religious freedoms are important. We have lived with offline services forever – or at least for as long as there has been a humanity. Because infinite growth in a finite worldSee: Latouche, Serge. 2012. L’âge des limites. 1001 Nuits. is impossible, I do not believe that, on the long term, it is a valid argument to state that individuals should forsake important values (like their religious beliefs) for the sake of economic growth. So even if it were to be proven that going all-digital makes us save money collectively, or that it generates economic growth, I would tend to reject that argument as being completely moot in the face of fundamental values like religious tolerance. As such, even in France, I do not believe that we should reject Amish tourists just because they refuse to use a credit card or a smartphone.
Another justification lies in line with traditions based on privacy as dignity (Whitman, 2004). We have seen many examples where, given special circumstances like old age or poverty, one could not access digital technology, and excluding them from society for this reason would be both wrong and, at least in this case, actually illegal. But I feel like there is an argument to be made from the fact that humans crave certain interactions and have certain needs (such as survival) even without any technical artefacts. Furthermore, being undocumented is now considered such a problem that people who do not have a citizenship enjoy certain protections under the 1954 New York Convention. Legal death is no longer an acceptable criminal punishment. So why should people suffer similar penalties just for refusing to use computers, even if it is just “for the heck of it?”
Because a full definition of dignity is – sort of the jus cogens of international law – a sort of Holy Grail that everyone tries to find but where reaching a full consensus is difficultSome people will say that this is true with privacy as well. See: Mulligan, Deirdre K., Colin Koopman and Nick Doty. 2016. “Privacy is an essentially contested concept: a multi-dimensional analytic … Continue reading, I tend to prefer utilitarian arguments that derive fundamental rights from a principle of utility which I find easier to support.
Louis Brandeis and Samuel WarrenBrandeis, Louis and Samuel Warren. 1890. “The Right to Privacy”, Harvard Law Review, vol. 4, nr. 5, pp. 193–220 famously defined privacy as a “right to be let alone.” It is rather safe to assume that anyone has experienced the feeling where one wants to shout “just leave me alone!” at someone, or, at times, at something. This thing can be a smartphone. In the frame of the AdoprivacyAdoprivacy is a research project coordinated by Prof. Dr. Sophie Jehel, and funded by the Défenseur des droits and the INJEP. See: https://www.adoprivacy.fr/ research project, I have talked with a few French teenagers and educators, some of whom have expressed during interviews that they were fed up with the constant flow of notifications, but did not always know how to quit for fear of becoming an outcast.
This is where privacy serves many purposes, including the pursuit of happiness, in a way that is very much aligned with John Stuart Mill’s arguments in favour of individual libertyMill, John Stuart. 1859. On Liberty, JW Parker and Sons.. In On Liberty, he claims that, ultimately, it is the individual who is best able to determine his or utility (that is to say, to summarise very quickly: path to fulfilment), and not the State, or the Church, or anybody else. There is also value, he states, in allowing people to explore different lifestyles – provided that their private actions do not provoke harm onto others. Given that, as far as I know, arguments in favour of forcing people to take part in the “digital society” are mainly economic arguments, and given that infinite growth in a finite world is impossible, such arguments, in my opinion, do not hold against the genuine desire to be “let alone” by this digital society.
Complaints about feeling compulsed, or obliged, to be online – and therefore at the reach of others – at all times abound. A quick online search will yield many results on people explaining the benefits they feel from being offline at least from time to timeSee, for example: https://www.sloneek.com/blog/digital-detox-a-few-tips-on-how-to-set-it-up-and-why-go-offline-sloneek/ ; … Continue reading At the panel on the right to be offline at 2016’s CPDP conference, researcher Hille Koskella explained that she stays away from a lot of the digital life, including social media, because she tries to avoid the sense acceleration-induced stress that comes with being online all the timeSee the recording of the panel: https://www.youtube.com/watch?v=tSRbuPRezO0. Even if this is not true for everyone, a lot of people have come to associate the Internet with negative feelings. Surely, you can’t expect victims of hate speech to have to keep their mobile data connection on at all times, and their attention tuned to notifications of hatred?
This last example is extreme, and it is so on purpose. It allows me to answer a counter-argument made by someone in the audience of the launch event by the Catalan government and AccessNow of the “Geneva Declaration on Targeted Surveillance and Human Rights”. Surely, it should not be up to victims of unlawful behaviour, such as harassment or personal data right violations, to stay away from the wonders of the digital world?
I would most definitely agree. But just as Scott Skinner-ThompsonSkinner-Thompson, Scott. 2020. Privacy at the Margins. Cambridge, Cambridge University Press., I would contend that just because people who are victims of right violations must be protected, and have access to lawful remedies, does not mean that being able to take a break from that abuse does not have any value. This makes privacy valuable for people victims of systemic surveillance and discrimination even if such discriminations should be dealt with in the first place. And hiding away from the less-nice aspects of online life should also be permitted even if online abuse must also be dealt with so that everyone can have a choice to participate.
Another argument that can come at this point is that this example is definitely not an example where someone decides to remain offline “just for the heck of it”. And just because someone turns off social media or geolocation does not mean that one is unwilling to fill an online form for an administrative procedure or to buy a train ticket.
The biggest argument in favour of a right to be offline “just for the heck of it” is that it is the only way to make sure that a vulnerable person, whose vulnerability makes her or him eligible to a right to be offline “as a last resort due to particular circumstances”, does not have to bear the burden of the proof of the said situation.
Another argument is that a society that is unable to function without digital tools is more likely to collapse when faced with natural catastrophes, wars, blackouts, or other situations where such services are, at least temporarily, unavailable. Creating a negative and a positive right to be offline “just for the heck of it” forces redundancy and improves resilience. In a way, it fosters collective technological sovereignty, because it maintains the structure of existing – oftentimes local, or at least less global – sociotechnical systems. This is where an argument that is closer to classical conservatism comes into play. As Karaboga et al. (2017) have argued, there is value in established practice, and there is therefore often value in maintaining it.
An utilitarian argument is that only by allowing people to live more simple lifestyles will we be able to experiment, both individually and collectively, ways to reduce our environmental footprint. The environmental cost of a fully digital life is indeed far from negligibleSee: Flipo, Fabrice. 2021. La numérisation du monde: Un désastre écologique. L’Échappée. See also, in general, research conducted by the Working Group on Digital Environmental Policies of the … Continue reading. Of course, it is hard to estimate tradeoffs. Videoconferences can help reduce the carbon footprint of, say, aviation, by lowering the need to travel. On the other hand, video streaming is very costly, and so is programmatic advertisement. But, regardless, allowing people who want to, to explore alternative lifestyles, is likely to yield both individually and collectivelly useful results on the long term.
A fourth argument, given the tendency of mainstream ICT to become more and more authoritarian in its design (Tréguer, 2019), it could be argued that allowing anyone who wishes to be offline to do so is a new form of counter-power, or “check and balance”, that limits the reach of contemporary power structures.
Finally, a completely subjective argument, is that this is once again linked to human dignity. Humans should have equal rights by birth. This is, after all, what is stated in France under article 1 of the revolutionary 1789 Declaration of the Rights of Man and the Citizen. And humans are not born into the digital world. So given the fact that there is no guarantee that one will always be able to access and use online devices, one’s dignity and status as a free human, subject of rights, should not be dependent on participation in a complex and costly technical system. Even if the said technical system has a lot of merits, and even if there is, at the same time, a very important negative and increasingly positive right to have access to the said technical system.
Which brings us back in a circle to the first one perhaps most important reason on why there should be a right to be offline “just for the heck of it”: to ensure that the burden of proof does not lie on vulnerable people.
Non-Concluding Conclusion and Further Questions
It is traditional and very chich for French legal scholars to avoid writing any conclusion, and I sort of feel like, at this point, I should follow this tradition. But given the length of this working paper, I feel like a short recap may be useful.
As far as I know based on limited existing literature and on what I know of positive law, at least in France, based on national and European law, there is only a limited general right to an offline alternative in specific circumstances. There are, however, sectorial initiatives, in the field of labour law, or with proposals, this time in Austria, to protect the right to cash on a constitutional level.
A quick exploration of moral and philosophical arguments in favour of allowing people not to use computers “just for the heck of it” shows that support for such a position can be drawn from a rather wide variety of ethical traditions. At the same time, these working paper musings are just a personal exploration of a topic that actually deserves more serious and in-depth research and intellectual debate.
One thing this working paper did not do was look into the extent to which there should be a positive right to be offline. Nor did I explore the potential limits of such a right, given that the aim was to start with exploring the reasons why there should be one in the first place. I did not look much into consumer law, nor into competition or state aid law. And an exercise in comparative law would be most useful. There may be, after all, jurisdictions that have already recognised a right to be offline, that I am not aware of.
As a final conclusion, one thing I am certain of in relation to this topic, is that there is a vast field of research that has so far been left unexplored, and deserves more attention.
Should you have any comments on all of the above, feel free to reach out. I welcome any critical feedback, or reading suggestions.
|↑1||Berhuet, Solen, Lucie Brice-Mansencal, Patricia Croutte, Eliot Forcadell, Charlotte Millot and Jörg Müller, 2023. Baromètre de l’Arcep et du CREDOC, see: https://www.credoc.fr/publications/barometre-du-numerique-edition-2023-rapport|
|↑2||based on population statistics published by INSEE: https://www.insee.fr/fr/statistiques/5225246|
|↑3||I could not find overall demographic statistics on the population aged between 18 and 24, as the INSEE uses different categories, so I do not have an estimate of how many individuals are concerned in absolute values|
|↑4||Mittelstadt, Brent, Tobias Matzner, Ero Balsa, Katleen Gabriels, Hille Koskela and Carsten Ochs, 2016. CPDP 2016: Is there right for offline alternatives in a digital world? See panel recording at: https://www.youtube.com/watch?v=tSRbuPRezO0|
|↑5||Kloza, Dariusz. 2021. “It’s All About Choice: The Right Not to Use the Internet”, Völkerrechtsblog. See: https://researchportal.vub.be/en/publications/its-all-about-choice-the-right-not-to-use-the-internet|
|↑6||Karaboga, Murat, Tobias Matzner, Hannah Obersteller and Carsten Ochs. 2017. “Is There a Right to Offline Alternatives in a Digital World?”, in: Leenes, Ronald, Rosamunde van Brakel, Serge Gurtwirth and Paul de Hert (eds), Data Protection and Privacy: (In)visibilities and Infrastructures, Cham, Springer, pp. 31-58|
|↑7||Tréguer, Félix. 2019. L’Utopie Déchue. Une contre-histoire d’Internet. Paris, Fayard. For an English language book review, see, e.g.: http://www.tecnoscienza.net/index.php/tsj/article/download/462/279|
|↑8||The Declaration of the Independence of Cyberspace can be read here: https://www.eff.org/fr/cyberspace-independence|
|↑9||Loi du 26 juillet 1996 de réglementation des télécommunications, article 8|
|↑10||C. Constitutionnel, 10 June 2009, decision 2009-580 DC, “Hadopi”|
|↑11||ECtHR 18 December 2012, Ahmet Yıldırım v. Turkey, 3111/10; see also ECtHR 17 January 2017 Jankovskis v. Lithuania, 21575/08|
|↑12||See Title III of Loi 2016-1321 du 7 octobre 2016 pour une République numérique|
|↑14||See: Rossi, Julien. 2017. « Les enjeux de l’infrastructure numérique dans les politiques de développement ». In: Stabilité, intégration, coopération et développement. Szeged, Centre universitaire francophone, p. 141‑166. ISBN : 978-963-306-546-4. On IT and development policy in general, see work by Alain Kiyindou, including: Kiyindou, Alain. 2009. Les pays en développement face à la société de l’information, Paris, L’Harmattan.|
|↑15||Perarnaud, Clément, Julien Rossi, Francesca Musiani and Lucien Castex. 2022. ‘Splinternets’: Addressing the renewed debate on internet fragmentation. See: https://www.europarl.europa.eu/stoa/en/document/EPRS_STU(2022)729530|
|↑16||ECtHR 10 April 2007 “Evans v. UK” 6339/05|
|↑17||Bellon, Anne. 2023. L’Etat et la Toile: Du développement de l’internet à la numérisation de l’action publique. Vulaines sur Seine, Éditions du Croquant.|
|↑18||Défenseur des droits. 2023. Dématérialisation des services publics : trois ans après, où en est-on ?. https://www.defenseurdesdroits.fr/sites/default/files/atoms/files/ddd_rapport-dematerialisation-2022_20220307.pdf|
|↑19||Pervasive surveillance is, in and by itself, harmful, as demonstrated by Adam Moore in: Moore, Adam. 2003. “Privacy: Its Meaning and Value”, American Philosophical Quarterly, vol. 40, nr. 3, pp. 215-227|
|↑21||Mokadem, Hakim. 2022. “Consentement, protection des données… à peine lancé, “Mon Espace Santé” déjà critiqué”. Marianne. https://www.marianne.net/societe/sante/consentement-protection-des-donnees-a-peine-lance-mon-espace-sante-deja-critique. See also: https://www.laquadrature.net/2022/03/25/pourquoi-sopposer-a-la-creation-de-mon-espace-sante/|
|↑22||Loi n° 2005-102 du 11 février 2005 pour l’égalité des droits et des chances, la participation et la citoyenneté des personnes handicapées|
|↑23||Especially article 225-1 of Criminal Code, which forbids discriminations i.a. on the grounds of their handicap.|
|↑24, ↑26||Aouici, Sabrina and Malorie Peyrache. 2021. “Le soutien d’un tiers pour limiter le non-recours face à l’e-administration : enjeux et limites”, Retraite et société, nr. 87, pp. 191-202|
|↑25||Délibération n° 2022-068 du 9 juin 2022 portant avis sur un projet de décret autorisant la création d’un traitement automatisé de données à caractère personnel pour le contrôle de l’existence des bénéficiaires d’une pension de vieillesse résidant à l’étranger|
|↑27||Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC|
|↑28||See here: https://foundation.mozilla.org/fr/privacynotincluded/articles/its-official-cars-are-the-worst-product-category-we-have-ever-reviewed-for-privacy/|
|↑29||See, for Google: CNIL, Délibération SAN-2019-001 du 21 janvier 2019, and Conseil d’État 19 juin 2020, Google contre CNIL, nr. 430810|
|↑30||Scott, Brett. 2022. Cloudmoney: Cash, Cards, Crypto and the War for our Wallets. Bodley Head.|
|↑31||Article D112-3 of the Code monétaire et financier.|
|↑32||Untersinger, Martin. 20 October 2017. “Izly, l’appli du Cnous qui géolocalise des étudiants et renseigne des sociétés publicitaires”, Le Monde, https://www.lemonde.fr/pixels/article/2017/10/20/izly-l-appli-du-cnous-qui-geolocalise-des-etudiants-et-renseigne-des-societes-publicitaires_5203902_4408996.html|
|↑33||See their working paper: https://privacyinternational.org/long-read/84/why-we-are-so-concerned-about-government-hacking-surveillance|
|↑34||see: Manach, Jean-Marc. 2021. “NSO : Pegasus aurait aussi espionné le téléphone de la femme du journaliste assassiné Khashoggi”, Next-Impact, https://www.nextinpact.com/article/49270/nso-pegasus-aurait-aussi-espionne-telephone-femme-journaliste-assassine-khashoggi|
|↑35||See article 3 of Projet de loi d’orientation et de programmation du ministère de la justice 2023 – 2027; as of August 31, 2023, this bill was still under negociation between the National Assembly and the Senate, but the provisions on remote access to devices are likely to go through Parliament soon. See: https://www.assemblee-nationale.fr/dyn/16/dossiers/DLR5L16N47779|
|↑36||I am complaining, but I do believe that there is value in the peer-review process. I am just enjoying the freedom that comes with publishing a mere bunch of unscientific thoughts to my own personal blog.|
|↑37||Décret nr. 2021-313 of 24 March 2021, Arrêté du 27 avril 2021 pris en application de l’article R. 431-2 du code de l’entrée et du séjour des étrangers et du droit d’asile relatif aux titres de séjour dont la demande s’effectue au moyen d’un téléservice, and Arrêté du 19 mai 2021 modifiant l’arrêté du 27 avril 2021 pris en application de l’article R. 431-2 du code de l’entrée et du séjour des étrangers et du droit d’asile relatif aux titres de séjour dont la demande s’effectue au moyen d’un téléservice|
|↑38||Conseil d’État, 3 June 2022, decision nr. 452798, Conseil national des barreaux et autres|
|↑39||Translated from French. Original text: “à la condition de permettre l’accès normal des usagers au service public et de garantir aux personnes concernées l’exercice effectif de leurs droits.”|
|↑40||“un accompagnement les personnes qui ne disposent pas d’un accès aux outils numériques ou qui rencontrent des difficultés soit dans leur utilisation, soit dans l’accomplissement des démarches administratives”|
|↑41||“[…] pour le cas où certains demandeurs se heurteraient, malgré cet accompagnement, à l’impossibilité de recourir au téléservice pour des raisons tenant à la conception de cet outil ou à son mode de fonctionnement.”|
|↑42||This part was written on Sept. 1st, 2023|
|↑43||“[…] elle invite le ministère à faire apparaître explicitement dans le projet de décret le caractère facultatif du recours au dispositif ainsi que l’information annuelle des personnes concernées sur l’ensemble des moyens alternatifs permettant de prouver leur existence.”|
|↑44||See: Cons. const., 23 July 1999, nr. 99-416 DC.|
|↑45||Loi n° 78-17 du 6 janvier 1978.|
|↑46||De Marco, Estelle. 2018. Comparative study between directive 95/46/EC & the GDPR including their relations to fundamental rights. Deliverable D2.10, project INFORM, JUST-JTRA-EJTR-AG-2016|
|↑47||A data controller is a person or a set of persons acting as joint controllers who determine the means and ends of a data processing operation.|
|↑48||User in data-protection-speak.|
|↑49||See: Olejnik, Lukasz, Tran Minh-Dung and Claude Castelluccia, 2013. “Selling Off Privacy at Auction”, hal-00915249, https://inria.hal.science/hal-00915249/document|
|↑50||Benjakob, Omer. 2023 “Revealed: Israeli Cyber Firms Have Developed an ‘Insane’ New Spyware Tool. No Defense Exists”, Haaretz, 14 Sept. https://www.haaretz.com/israel-news/2023-09-14/ty-article-magazine/.highlight/revealed-israeli-cyber-firms-developed-an-insane-new-spyware-tool-no-defense-exists/0000018a-93cb-de77-a98f-ffdf2fb60000|
|↑51||CNIL, Délibération SAN-2019-001 du 21 janvier 2019, and Conseil d’État 19 juin 2020, Google contre CNIL, nr. 430810|
|↑52||ECJ 5 June 2018 Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein contre Wirtschaftsakademie Schleswig-Holstein GmbH, C-210/16; ECJ 29 July 2019 Fashion ID GmbH & Co.KG contre Verbraucherzentrale NRW eV, C-40/17.|
|↑53||“L’organisation des mobilités sur l’ensemble du territoire doit satisfaire les besoins des usagers et rendre effectifs le droit qu’a toute personne, y compris celle dont la mobilité est réduite ou souffrant d’un handicap, de se déplacer et la liberté d’en choisir les moyens […]”|
|↑54||See articles 226-16 to 226-24 of the Criminal Code.|
|↑55||See articles 432-4 to 432-6 of the Criminal Code.|
|↑56||See its article L121-11.|
|↑57||Conseil d’État, 2023. “12 propositions pour réussir le dernier km de l’action publique”, 2023 Anunal Study, https://www.conseil-etat.fr/Media/actualites/documents/2023/septembre-2023/dossier-de-presse-etude-sur-le-dernier-kilometre-de-l-action-publique, p.4)). But such a principle goes beyond what the French supreme administrative judges have recognised.
Dariusz Kloza (2021) explores some of the ECtHR case law, trying to answer the following question: can you force somebody to use the Internet? He examined cases where the Court ruled on a right not to do something. In 2008, for example, it ruled that one should not be forced to swear a religious oath, for this would amount to forcing one to reveal one’s religion, which would be in stride with his right to religious freedom, which includes the right not to disclose or profess any religious belief((ECtHR 21 February 2008, Alexandridis v. Greece, 19516/06, §38.
|↑58||ECtHR 30 June 1993, Sigurður A. Sigurjónsson v. Iceland, 16130/90, §35|
|↑59||ECtHR 3 March 1986, Stevens v. United-Kingdom, 11674/85|
|↑60||ECtHR 4 December 2008,S. and Marper v. the United Kingdom, 30562/04 and 30566/04, §66)). Furthermore, “in general terms, it secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality”((ECtHR 28 October 2014, Gough v. the United Kingdom, 49327/11, §182|
|↑61||ECtHR 14 June 2016, Biržietis v. Lithuania, 49304/09, §§ 54 and 57-58|
|↑62||§58 of the above case.|
|↑63||ECtHR 1st July 2014 SAS v France, 43835/11, §25|
|↑64||“Article 8 cannot be taken to protect every conceivable personal choice in that domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question” (§184|
|↑65||See i.a. ECtHR 2 September 2009, Uzun v. Germany, 35623/05|
|↑66||ECtHR 22 February 2018, Libert contre France, 588/13|
|↑67||ECtHR 24 September 2009, Diana Vučina v. Croatia, 58955/13, §50)).
Is the obligation to live online such a hard obligation that one – irrespective of one’s personal situation – should have a right to choose this lifestyle, or not? How is it even related to privacy, as defined by the ECtHR’s case law?
Privacy, according to that court’s case law, covers an array of topics as diverse as the right not be insulted and belittled in class in an educational setting((ECtHR 22 April 2021, F.O. v. Croatia, 29555/13, §81
|↑68||ECtHR 17 January 2021,.H. and others versus Russia, nr. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 27161/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, 42340/13 and 42403/13|
|↑69||ECtHR 10 April 2007, Evans v UK, 6339/05|
|↑70||ECtHR 20 March 2007, Tysiąc v. Poland, 5410/03, §107; ECtHR 16 December 2010, A B C v Ireland, 25579/05 §214|
|↑71||ECtHR 22 October 1981, Dudgeon v UK, 7525/76|
|↑72||ECtHR 19 January 2021, Lacatus v. Switzerland, 14065/15|
|↑73||If one would like a more complete account, based on comparative law, of what the right to privacy covers, I would highly recommend Koops, Bert-Jaap, Bryce Clayton Newell, Tjerk Timan, Ivan Škorvánek, Tomislav Chokrevski and Maša Galič. 2017. “A Typology of Privacy”, University of Pennsylvania Journal of International Law, vol. 38, nr. 2, pp. 483-575.|
|↑74||For a philosophical account, see: Whitman, James Q.. 2004. “The Two Western Cultures of Privacy: Dignity Versus Liberty”, Yale Law Journal, vol. 113, nr. 6, pp. 1151-1221. For a reference to human dignity in relation to the right to privacy under the ECHR, see: ECtHR 19 January 2021, Lacatus v. Switzerland, 14065/15, §56.|
|↑75||ECtHR, Lacatus case, §56.|
|↑76||ECtHR, Lacatus case, §55.|
|↑77||Hülsemann, Laura. 2023. Aug. 4. “Austrian chancellor: Right to use cash should be in constitution”, Politico Europe, https://www.politico.eu/article/austria-chancellor-karl-nehammer-cash-use-constitution/|
|↑78||Article L2242-17 7° of the Labour Code.|
|↑79||Like when the German Federal Constitutional Tribunal ruled, in 2020, that the European Central Bank’s Public Sector Purchase Programme was illegal, in BVerfG 5 May 2020 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15.|
|↑80||See: ECJ 9 March 2010, European Commission v. Federal Republic of Germany, C-518/07|
|↑81||On this, see: De Hert, Paul and Dariusz Kloza, 2012. “Internet (access) as a new fundamental right. Inflating the current rights framework?”, European Journal of Law and Technology, vol. 3, nr. 3, https://ejlt.org/index.php/ejlt/article/view/123.|
|↑82||See: Latouche, Serge. 2012. L’âge des limites. 1001 Nuits.|
|↑83||Some people will say that this is true with privacy as well. See: Mulligan, Deirdre K., Colin Koopman and Nick Doty. 2016. “Privacy is an essentially contested concept: a multi-dimensional analytic for mapping privacy”, Philosophical Transactions of the Royal Society A: Mathematical, Physical and Engineering Sciences, 374:20160118. http://doi.org/10.1098/rsta.2016.0118. However, privacy can still be defined, from a sociological perspective, as something that is constituted by reactions to feelings of intrusion or, in some cultures, of intruding upon.|
|↑84||Brandeis, Louis and Samuel Warren. 1890. “The Right to Privacy”, Harvard Law Review, vol. 4, nr. 5, pp. 193–220|
|↑85||Adoprivacy is a research project coordinated by Prof. Dr. Sophie Jehel, and funded by the Défenseur des droits and the INJEP. See: https://www.adoprivacy.fr/|
|↑86||Mill, John Stuart. 1859. On Liberty, JW Parker and Sons.|
|↑87||See, for example: https://www.sloneek.com/blog/digital-detox-a-few-tips-on-how-to-set-it-up-and-why-go-offline-sloneek/ ; https://offlinedestinations.com/digital-detox-how-to-unplug-and-recharge-every-day/ ; https://www.itstimetologoff.com/2016/12/29/30-day-digital-detox-challenge/ ; these are just a few examples on top of a quick Google search on “digital detox”. I am not necessarily endorsing all the claims made by these blogs. But the fact is that many people claim that spending time offline benefits their sense of wellbeing. Even if this may not be true for everyone, it is reasonable to admit that it is true for many people, regardless of their actual (unknown) proportion.|
|↑88||See the recording of the panel: https://www.youtube.com/watch?v=tSRbuPRezO0|
|↑89||Skinner-Thompson, Scott. 2020. Privacy at the Margins. Cambridge, Cambridge University Press.|
|↑90||See: Flipo, Fabrice. 2021. La numérisation du monde: Un désastre écologique. L’Échappée. See also, in general, research conducted by the Working Group on Digital Environmental Policies of the GDR Internet, IA et Société of the CNRS: https://cis.cnrs.fr/politiques-environnementales-du-numerique/|