Proposal For A Sovereign and Democratic Digitalisation

Proposal for a
Sovereign and
Democratic
Digitalisation
of Europe
Reflection paper
Lead author: Simona Levi, Xnet

PE 698.867 – December 2021
EN
Proposal for a
Sovereign and
Democratic
Digitalisation of
Europe
Digital transformation is currently at the core of the European agenda.

Starting from a case study, this paper has detected a number of loopholes
relating to the foundations on which societies are being digitalised. These
deficiencies could undermine the benefits of valuable and distributed
human capacities, and even human rights themselves. The paper analyses
the situation and the efforts already made in the EU. It proposes policy
recommendations and three actions/prototypes as correctors of the main
flaws, to foster digitalisation that reaches all citizens in a democratic way.
AUTHORS
1. Coordinator and main author:
Simona Levi, Executive Director of Xnet (non-profit, digital rights department for Democratic Digitalisation of
Instituto para la Cultura Democrática en la Era Digital).
Other author-members of Xnet: Miriam Carles, legal unit; Cecilia Bayo, education unit; Sergio Salgado,
investigation unit.
2. Contributors:
Dr Mara Balestrini (PhD), senior advisor in Human-Computer Interaction; Prof. Floren Cabello (PhD), professor
of Communication Technology at the University of Malaga; Andrea G. Rodríguez, researcher of the Barcelona
Center of International Affairs (CIDOB); Isaac Monclús, independent researcher in digital culture.
In chapter 2: DD working group.
In chapter 4.2: Àlex Puig, Caelum Lab founder.

In chapter 6: Engineering Without Borders (ESF) and working group on Internet access of the postgraduate
degree in Technopolitics and Rights in the Digital Era of the University of Barcelona.
In chapter 6.2: Ramon Roca, president of Guifi Net Foundation.
In chapter 7.2: Claudia Delso, lead researcher of the working group on Techopolitics and Sustainibility of the
postgraduate degree in Technopolitics and Rights in the Digital Era of the University of Barcelona.
In chaper 7.3: Marc Realp Campalans, director of the Catalan Competition Authority in collaboration with
Xavier Puig Soler.
The authors acknowledge and would like to thank the following persons and groups as experts for their advice
on this report: Cory Doctorow; Jelle Klaas from PILP-NJCM; Albert Cañigueral; Maddalena Falzoni from Maadix;
Albert Larraz, Josep Maria Viñolas, Simó Albert and IsardVDI; Cristiano Zerbinati, Antonio Manzano, Antoni
Bertran and 3iPunt; Olivier Tilloy; Bogdan Manolea, Matei-Eugen Vasile and ApTI; Rachel Knaebel (Observatoire
des Multinationales), Max Bank (LobbyControl), Thomas Dürmeier (Goliathwatch) and European Network Of
Corporate Observatories; Helena Svatošová and IuRe; Lenka Ježková and Oživení; Dan Petrucha and Liga
Lidských Práv; Davide del Monte from Hermes Center; Felix Tréguer and Quadrature du Net; Andreea Belu
from EDRi; Alfons Pérez and ODG; Arnau Monterde, Elisenda Ortega, Marc Pérez, Prof. Joan Subirats, David
Llistar, Álvaro Porro, Elisenda Vegué, Laia Bonet and Michael Donaldson from City Council of Barcelona;
Raegan MacDonald and Udbhav Tiwari from Mozilla; Pascal Brunet and Fabienne Trotte from Relais Culture
Europe; Nickolas Komninos; Agustín F. Marín.
Linguistic Review: Christopher Millard.
Support to editing: Xavier Farrés.

This paper has been written at the request of the cabinet of the President of the European Parliament.
Manuscript completed in December 2021. (Original language: EN)
DISCLAIMER AND COPYRIGHT
This document is prepared for, and addressed to, the Members and staff of the European Parliament as
background material to assist them in their parliamentary work. The content of the document is the sole
responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official
position of the Parliament.
Reproduction and translation for non-commercial purposes are authorised, provided the source is
acknowledged and the European Parliament is given prior notice and sent a copy.
Brussels © European Union, 2022.
PE 698.867 ISBN 978-92-846-8866-1 DOI:10.2861/671958 QA-01-22-019-EN-N

Proposal for a Sovereign and Democratic Digitalisation of Europe
Executive summary
Authors' working definition ->
Democratic digitalisation: a digital transition based on human rights and cooperation, by
design and by default.
Sovereign digitalisation: digitalisation in which one can control the use and destiny of created
contents and generated data.
Digitalisation is currently at the top of the European political agenda, but the digitalisation of
societies has already been ongoing for half a century.
When referring to digitalisation, one often refers to large infrastructure projects such as 5G,
supercomputers, quantum computers, etc., or to discussions about the use of digital in societies in
terms of media literacy and digital participation or eDemocracy. However, there is an unavoidable
stage before all this which makes everyday digital life possible in all societal activities, from essential
services to individual usage: access to the Internet; content creation and its storage; online
interpersonal communication; browsing, and so on. This stage is often taken for granted -
consolidated in everyday life mostly by non-EU private Big Tech companies -, when in fact it needs
serious consideration to ensure that Europe’s digital future is not being built on weak foundations
and non-easily verifiable safeguards for human rights or other European values, data and content
sovereignty, justice and entrepreneurship for all.
The focus of this report is on how to build the necessary pre-conditions for an inclusive digitalisation
of Europe by applying a perspective of disintermediated sovereignty, one that also reaches the
smaller stakeholder or co-responsible unit of the democratic architecture: each citizen.
This is why the definition of sovereignty that guides this study encompasses elements which are not
usually taken into consideration when discussing digital sovereignty, but in which the EU might
have a historical advantage over other parts of the world. Some of these elements are Internet access
as a right, the right to privacy and personal data sovereignty for individuals and groups, the right to
the inviolability of communications, and informational self-determination.
The report's starting point takes advantage of the experience of the Democratic Digitalisation Plan
and the pilots that have been generated in education. Using this practical example as a case study,
the report analyses the obstacles, what happens on the ground when legislation is tested, and the
steps that could be taken towards sovereign and democratic digitalisation both for the individual
and societal.
The conclusions are that the plans for the European digital transition take for granted the
architecture of some of the most basic tools/infrastructures needed by the population in their
everyday digital life. From the point of view of democratic rights, sovereignty and their functionality
in the era we live in, some of them present, or are developing, deficits.
This could imply a drift towards non-democratic frameworks or, in the best-case scenario, a complex
ex-post harmonisation.
As possible paths for institutions to complement the efforts already in place, the report proposes
3 Actions/Prototypes in the fields of: everyday operational tools and storage (Action/Prototype 1);
Email and interpersonal communication (Action/Prototype 2); Internet browsing
(Action/Prototype 3).
I
Study for the European Parliament
Moreover, as conditio sine qua non for the objectives of the Actions/Prototypes, in particular, and for
a democratic digitalisation in general, this paper analyses the issues related to entrepreneurship and
those dealing with access to the Internet.
In summary, current everyday digital tools/infrastructures do not ensure the best standards for
sovereignty of content and data neither for the individual, nor organisations and states. This is
mainly because those standards are not verifiable in a distributed and agile way. This affects the full
guarantees of various human rights, such as the right to privacy or the right to conduct a business,
and democratic governance as a whole.
The solutions that permit technology that is auditable in a distributed way exist, but are hindered
by comparative disadvantages due to a situation of dominant positions and market failures.
A duty of care and supportive strategic design from the EU is needed to ensure sovereign and
democratic digitalisation.
Map of issues and proposals for solutions of the report
Change of perspective: thinking digital from a democracy updated to the digital
era (chapter 1).
Reinforce human rights in digital transformation: Improvement of the actual
framework of investments, policies, legislations and enforcement (chapter 3).
Lack of democratic tools/infrastructures for generating content and operating
online from the perspective of digital and democratic sovereignty: Distributed
auditability of the code; interoperability and portability of standards, contents and
data (chapter 2, 3, 4, 5).
Interpersonal communication and email services as the gateway for the lack of
digital sovereignty (chapter 4).
Precondition for democratic and sovereign digitalisation: Access to the Internet as
a right (chapter 6).
Small and medium size distributed businesses de facto not allowed to contribute
to digitalisation. Correction of market failures and enforcement of the legislation
and policies that reach SMEs for a democratisation of the right to enterprise, a
return on public investment and to avoid captive customers (chapter 7).
II
Table of contents
PART 1 - CONTEXT _______________________________________________________________ 1
1. Introduction - Statement of intent and objectives of the report ______________________ 3
Digital transformation and human rights: cooperation and better democracy __________ 3
Digital transformation and human rights: societal and individual digital sovereignty ___ 11
Framework of the report ____________________________________________________ 15
2. Starting point - Case study. DD, Democratic Digitalisation Plan: A prototype as a replicable
model and guide for detecting societies’ current digitalisation problems_______________ 20
Action/Prototype 1 - Democratic Digitalisation Plan pilot scheme ___________________ 23
Map of solutions proposed in this report. Issues relating to the democratic digitalisation of
Europe detected by implementing the prototype of the Democratic Digitalisation Plan ____ 26
3. European institutional framework and trends in sovereign digitalisation ____________ 28
Digital sovereignty from the EU and states perspective ___________________________ 28
Digital sovereignty from the citizens' perspective ________________________________ 29
Brief critical analysis of key infrastructure trends concerning EU digital sovereignty ____ 30
Brief critical analysis of key regulations, institutional strategies and policies concerning EU
digital sovereignty ____________________________________________________________ 35
Summary - State of the art of EU digital sovereignty and draft for a wider perspective __ 40
PART 2 – ESSENTIAL DIGITALISATION INFRASTRUCTURES OF EVERYDAY LIFE NOT INCLUDED

IN THE EU STRATEGIES __________________________________________________________ 41
4. A system for interpersonal communication, nowadays known as ‘email’ _____________ 43
‘Email’ as a gateway to digitalisation __________________________________________ 43
Action / Prototype 2 - After-email: Infrastructure for interpersonal communication that

guarantees the inviolability of communications by design and by default _______________ 47
Summary and policy recommendations - Infrastructures for interpersonal communication

and the right to inviolability of communications ____________________________________ 51
5. The browser - Firefox as a case study and an opportunity __________________________ 52
Action / Prototype 3 - The modern browser, one of the engineering feats of our time at the
service of the general interest ___________________________________________________ 52
III
PART 3 – WEAKNESSES IN POLICY ENFORCEMENT RELATED TO THE EU’S DIGITAL

TRANSFORMATION _____________________________________________________________ 59
6. Precondition for democratic and sovereign digitalisation: Access to the Internet as a right -
State of the art _________________________________________________________________ 61
Regulatory state of the art on the right to (quality) access to the Internet from a human rights
perspective __________________________________________________________________ 67
6.1.1. From consumer product to right ___________________________________________ 67
6.1.2. Net Neutrality __________________________________________________________ 70
6.1.3. Quality Internet as an essential universal public service of general interest _________ 71
The geographical digital divide ______________________________________________ 73
Summary and policy recommendations - Quality access to the Internet and geographic
digital divide _________________________________________________________________ 79
7. Sustainability of sovereign and democratic digitalisation. Anti-monopolistic and investment

policies that reach SMEs. Enforcement of the European Directives for the democratisation of
the right to enterprise. __________________________________________________________ 81
FLOSS (Free/Libre Open-Source Software) as a means for return on public investment in

democratic digitalisation _______________________________________________________ 81
Current public procurement deployment at odds with the agility of the digital age in general,
and with the opportunities for distributed entrepreneurship offered by FLOSS, in particular 83
7.2.1. European procurement Directives __________________________________________ 83
7.2.2. Public Procurement in Member States - Spain as a case study____________________ 84
7.2.3. Good practice: The case of the Municipality of Valladolid and… the Biden
Administration ___________________________________________________________ 92
Risks to competition of commercial infrastructure services "for free" _________________ 93
7.3.1. Background ____________________________________________________________ 93
7.3.2. Risk 1: competition will not be guaranteed in public procurement ________________ 94
7.3.3. Risk 2: ‘Unlevelling’ the playing field ________________________________________ 95
7.3.4. Risk 3: Market unassailability ______________________________________________ 95
Summary and policy recommendations for virtuous public procurement in democratic

digitalisation _________________________________________________________________ 96
ANNEXED FACTSHEETS _________________________________________________________ 99
IV
Factsheet 1. Brief chronological overview of the concept of digital sovereignty in EU

institutions ___________________________________________________________________ 101
Factsheet 2. Annotations to the current main EU infrastructure strategies concerning digital

sovereignty___________________________________________________________________ 105
Factsheet 3. Annotations to key EU regulations and institutional strategies and policies

concerning digital sovereignty __________________________________________________ 115
Factsheet 4. Chronological timeline of the right to secrecy of correspondence (inviolability of

communications) ______________________________________________________________ 127
Factsheet 5. The EU framework for the right to access the Internet and international standards
for high quality essential services to improve it ____________________________________ 130
Factsheet 6. Aspects related to EU strategies on investment for democratic digitalisation (1)

_____________________________________________________________________________ 138
Factsheet 7. Aspects related to EU strategies on investment for democratic digitalisation (2)

_____________________________________________________________________________ 140
V
Table of figures
Figure 1: Graphical comparison of centralised (A), decentralised (B) and distributed (C) systems and
partial map of the Internet in 2005. _________________________________________________ 4
Figure 2: Imbalanced influences in policy making _____________________________________ 8
Figure 3: The COVID-19 crisis has accelerated the digitalization _________________________ 10
Figure 4: Example of imbalanced distribution of ownership of technology ________________ 12
Figure 5: Layers to be considered for a democratic and sovereign digitalisation ____________ 16
Figure 6: Needs for everyday life sovereign digitalisation of society ______________________ 19
Figure 7: Digital capabilities scorecard _____________________________________________ 30
Figure 8: Data on European Digital Sovereignty ______________________________________ 33
Figure 9: There is no cloud, just other people's computers (2016) _______________________ 34
Figure 10: Imbalanced number of meetings with the EU-Commission on the DSA/DMA _____ 36
Figure 11: Degree of sovereignty of users in instant messaging platforms _________________ 48
Figure 12: Timeline of web browsers creation _______________________________________ 53
Figure 13: Market share of each browser before, during and after the first browser war. _____ 56
Figure 14: Nearly half of the world is still offline ______________________________________ 62
Figure 15: When the Internet isn’t affordable, people stay offline. _______________________ 72
Figure 16: Four of the most used platforms are owned by Facebook. Ownership of the most used
platforms ____________________________________________________________________ 72
Figure 17: The short proximity of underground infrastructures (Electricity, Telecom, Gas, Water and
Sewage) allows important cost savings through synergies _____________________________ 74
Figure 18: Broadband price in Europe ______________________________________________ 78
Figure 19: Tenders awarded to SMEs in the EU _______________________________________ 85
Figure 20: Tenders divided into lots in the EU _______________________________________ 85
Figure 21: Public procurement overall performance in the EU __________________________ 89
Figure 22: Lack of open-source talent ______________________________________________ 90
Figure 23: European Self Sovereign identity framework approach ______________________ 117
Figure 24: The General Data Protection Regulation: Cheat Sheet. _______________________ 118
VI
Table of tables
Table 1: Internet-based services and socioeconomic implications for the individual _________ 32
Table 2: Case study: Cloud and email services in Catalan schools, information society statistics for
academic year 2019-2020. _______________________________________________________ 45
Table 3: Fixed telephone, mobile phone and household Internet access (% EU) ____________ 63
Table 4: Evolution of Universal Service – Functional Internet Access (FIA) _________________ 69
Table 5: Evolution of Universal Service – Functional Internet Access (FIA) ________________ 133
Table 6: The impact of open-source software and hardware on technological independence,
competitiveness and innovation in the EU economy. Open-source software contributors and related
costs and value added per EU Member State in 2018. ________________________________ 139
VII
PART 1 - CONTEXT
1
2
1. Introduction - Statement of intent and objectives of the

report
Authors' working definition ->
Democratic digitalisation: a digital transition based on human rights and cooperation, by
design and by default.
Sovereign digitalisation: digitalisation in which one can control the use and destiny of created
contents and generated data.
Digital transformation and human rights: cooperation and

better democracy
Key words
Internet - Digital - Network - Disintermediation + Transparency - Access to information -

Cooperation + Difference - Updated representative democracy - Multistakeholderism -
Co-responsibility - Distributed leadership - Co-design - Reintermediation - GAFAM
The digital age offers opportunities for the advancement of democracy that have yet to
be fully exploited. One relevant one is a more distributed capacity to solve societal
problems. The everyday infrastructures required to do so should be designed
accordingly.
It is not sufficient to look at digital solely in terms of technological solutions.
In some ways, technology is not the most important aspect of the digital age, just as Gutenberg’s
printing press operating mechanism is not the most important factor of the importance of the
printing press in starting the Early Modern era —including the Age of Enlightenment—, although it
was one of the essential triggers for it 1.
The development of information and communication technologies (ICT) expands the means of
communication between human beings, as writing 2, 3 and the printing press did in the past. In other
words, ICT are creating disintermediation 4 in respect of the previous status quo, by democratising
access to information. This means providing citizens with more possibilities to exercise the ability to
choose, decide, and behave as adults exercising co-responsibility.
1
Eisenstein, E. (1980). The Printing Press as an Agent of Change. Cambridge: Cambridge University Press. Online ISBN:
9781107049963. DOI: https://doi.org/10.1017/CBO9781107049963.
2
Nehamas, A. & Woodruff, P (trad.). (1995). Plato Phaedrus. Hackett Publishing Company, Inc. isbn 0-87220-220-8.
See critical analysis in Postman, N. (1992). Technopoly: The Surrender of Culture to Technology. Vintage Books. ISBN
0679745408 (ISBN13: 9780679745402).
3
Cooper, J.M. (1997). Plato Complete Works. Hackett Publishing Company, Inc. ISBN 10: 0872203492. ISBN 13:
9780872203495.
4
Gellman, R., Disintermediation and the Internet, Government Information Quarterly, Volume 13, Issue 1, January 1996,
pp. 1-8, ISSN 0740-624X, https://doi.org/10.1016/S0740-624X(96)90002-7, Retrieved August 26, 2021, from
https://www.sciencedirect.com/science/article/pii/S0740624X96900027.
3
Co-responsibility is right at the heart of the etymology of ‘demo-cracy’ (the citizens as the
authority) 5. In other words, within the representative democracy we are in, it is about fulfilling the
potential of democracy by citizens supervising and contributing to their institutions, not just every
four or five years on election day, but in a more continuous and consistent way. On the other hand,
institutions can improve their abilities to be catalysers of the distributed capacities of society rather
than extractors of this wealth.
Thanks to its technical configuration as a decentralised/distributed network, the very structure of
the Internet not only enables this, but also offers a model for a new architecture for governance 6, 7, 8, 9.
Figure 1: Graphical comparison of centralised (A), decentralised (B) and distributed (C)
systems and partial map of the Internet in 2005.
Source: Baran, P. (1964). On Distributed Communications: I. Introduction to Distributed

Communications Networks. Santa Monica, CA: RAND Corporation. Retrieved October 13, 2021 from
https://www.rand.org/pubs/research_memoranda/RM3420.html and opde.org.
The Internet pioneers that created the architecture of the Internet —the network of networks that
we know today— figuratively gifted the world a methodology, which reconciles options that have,
very often throughout history, been in violent opposition. We are not talking here about how the
Internet is governed, but more simply about its physical structure: The idea of a system, formed into
a network comprising nodes of distributed leadership, combines the benefits of vertical and
horizontal structures, while partially avoiding the downsides of both 10. It transcends this dichotomy
5
In Ancient Greek "demos" means people, citizen and "kratos" power, authority, rule. In mythology Kratos is the son of
Pallas and Styx and the personification of authority in all its forms.
6
Winner, L. (1980). Do Artifacts Have Politics? Daedalus, Vol. 109, No. 1, Modern Technology: Problem or Opportunity?,
pp. 121-136. http://www.jstor.org/stable/20024652.
7
Lessig, L. (1999). Code and other laws of cyberspace. Basic Books. ISBN 0-465-03912-X. Retrieved October 13, 2021 from
https://lessig.org/images/resources/1999-Code.pdf.
8
Innis, H.A. (1951) The Bias of Communication, Toronto: University of Toronto Press. ISBN 0-8020-1040-7 (cloth). ISBN 0-
8020-6027-7 (paper). Retrieved October 13, 2021 from
https://archive.org/details/biasofcommunicat00inni/page/n5/mode/2up.
9
Sgueo, G. (2020, March). Digital democracy Is the future of civic engagement online? (Rep. No. PE 646.161). European
Parliamentary Research Service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/646161/EPRS_BRI(2020)646161_EN.pdf.
10
Jones, C., Hesterly, W.S., & Borgatti, S.P. (1997). A General Theory of Network Governance: Exchange Conditions and
Social Mechanisms. The Academy of Management Review, Vol. 22, No. 4, pp. 911-945. doi:
10.5465/AMR.1997.9711022109, JSTOR: 259249, S2CID: 1446183. Retrieved August 26, 2021.
4
and combines efficiency with transparency and enhances leadership, while allowing its distribution,
rather than centralising it11.
In short, the Internet has been created around the idea that there is no a single decision-making
centre. Structures with a single, centralised centre are considered not only more vulnerable to
external threats —since once the centre is affected, the entire structure is damaged because it
depends on it—, but they are less agile since any decision or action must go through a single site
creating a funnel in processing.
Similarly, if the model is transposed to human governance, the dichotomy between direct and
representative democracy is partly transcended for a third networked path: in a way the
representative democracy can be improved/reformed/transformed by introducing the element of
distributed leadership, agility, continuous demo's talent inclusion, etc. In summary, it can achieve a
higher degree of demo-cracy.
Centralised governance may have had a justification when there was no possibility of knowing
information in real time without consulting the central instance. Internet removes this obstacle.
Through the real time transparency that it allows, it enable the making of decisions at various levels
and places at the same time, allowing these points to know the rest of the decisions at the same
time. It allows the full deployment of various nodes capable of leading at the same time, what the
report authors call ‘distributed leadership’. As such, this distributed governance 12 adapts better to
11
Bard, A., & Söderqvist, J. (2012). The Netocracts: Futurica Trilogy 1. New York: Stockholm Text. Retrieved August 26,
2021.
12
By way of example:
• Sola Price, D. Jd. (1998). Networks of scientific papers. Science 149, 510–515 (1965).
• Redner, S. How popular is your paper? An empirical study of the citation distribution. Eur. Phys. J. B 134, 131–134.
• Albert, R., Jeong, H. & Barabási, A. L. (1999). Diameter of the World-Wide Web. Nature 401, 130–131.
• M. Faloutsos, P. Faloutsos and C. Faloutsos, (1999). On power-law relationships of the Internet topology.
Computer Communications Review 29, 251–262.
• A.-L. Barabási and R. Albert. (1999). Emergence of scaling in random networks. Science 286, 509-512.
• H. Jeong, B. Tombor, R. Albert, Z. N. Oltvai and A.-L. Barabási. (2000). The large-scale organization of metabolic
networks, Nature, 407, 651.
• Aiello, W., Chung, F. R. K. & Lu, L. (2000). A random graph model for massive graphs. Proc. 32nd Annual ACM
Symposium on Theory of Computing. 171–180 (Portland, OR, USA).
• Castells M (2001). The Internet Galaxy: Reflections on the Internet, Business and Society. Oxford: Oxford University
Press.
• Castells M (2002). Local and Global: Cities in the Network Society. Tijdschrift voor Economische en Sociale Geografie
93(5): 548–558.
• Castells, Manuel and Cardoso, Gustavo, eds., (2006). The Network Society: From Knowledge to Policy. Washington,
DC: Johns Hopkins Center for Transatlantic Relations.
• Jeong, H., Mason, S. P., Barabási, A. L. & Oltvai, Z. N. (2001). Lethality and centrality in protein networks. Nature
411, 41–42.
• Albert-László Barabási, Erzsébet Ravasz, Tamás Vicsek. (2001). Deterministic scale-free networks, Physica A:
Statistical Mechanics and its Applications, Volume 299, Issues 3–4, Pages 559-564, ISSN 0378-4371,
https://doi.org/10.1016/S0378-4371(01)00369-7.
• M. E. J. Newman, S. H. Strogatz and D. J. Watts. (2001). Random graphs with arbitrary degree distributions and
their applications. Phys. Rev. E 64, 026118.
• F. Liljeros, C. R. Edling, L. A. N. Amaral, H. E. Stanley and Y.˚ Aberg. (2001). The web of human sexual contacts.
Nature 411, 907–908.
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5
the condition of human organisation —and of many other biological, social and technological
networks— as shown by studies on the property of scale-free networks 13 and the 1-9-90% rule on
participation inequality 14, 15.
The 1-9-90% rule on participation inequality shows that the actual natural human behavioural way
of cooperation online - extendable to offline behaviour too -, means of organisation/governance, is
that each individual participates unequally in various decision nodes and/or actions. Sometimes
they are part of the leading group (1%), with others acting as a support for the group that leads (9%)
and yet others acting passively in a monitoring function for accountability (90%).
Now the conditions exist to evolve representative democracy toward a governance rooted in wide
cooperation, a form of multistakeholderism with the civil society organised as nodes with high
competencies in different specific fields, both from experience and research, as pioneers leading in
solving societal problems, catalysed by institutions as facilitators of the consolidation of those
solutions, and with society as a whole as a potential continuous distributed "supervisor". This is
relevant both so as not to waste knowledge, so that instead it is placed at the service of the general
interest, and to honour the deep meaning of the word "Democracy”.
The Internet was conceived open 16 and neutral 17, 18; it was accessible by design and by default as this
was the express desire of its designers 19. Had this not been the case, the history of humanity would
have been very different. As with the sequencing of the genome in which, creating the Bermuda
Principle, the participants agreed on making the entire sequence freely available in the public
• Valverde, Sergi & Ferrer-i-Cancho, Ramon & Sole, Ricard. (2002). Scale-Free Networks from Optimal Design. EPL
(Europhysics Letters). 60. 10.1209/epl/i2002-00248-2.
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19th international conference on World Wide Web, 591-600.
• M. Cha, H. Haddadi, F. Benevenuto and K. P. Gummadi. (2010). Measuring user influence in Twitter: The million
follower fallacy. Proceedings of international AAAI Conference on Weblogs and Social.
• J. Ugander, B. Karrer, L. Backstrom, and C. Marlow. (2011). The Anatomy of the Facebook Social Graph.
ArXiv:1111.4503.
13
See image as an example: Michal, G. ‘Part 1. Metabolic Pathways’. In Biochemical Pathways. F. Hoffmann-La Roche Ltd.
Retrieved August 26, 2021, from http://biochemical-pathways.com/.
14
1% rule (Internet culture). (2021, July 24). Retrieved August 26, 2021, from
https://en.wikipedia.org/wiki/1%_rule_(Internet_culture).
15
Nielsen, J. (2006, October 8). The 90-9-1 Rule for Participation Inequality in Social Media and Online Communities.
Nielsen Norman Group. Retrieved August 26, 2021, from https://www.nngroup.com/articles/participation-
inequality/.
16
Kroes, N. (2012, April 19). What does it mean to be open online? [SPEECH]. World Wide Web Conference. Retrieved
October 13, 2021 from https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_12_275.
17
Saltzer, J. H., Clark, D. And Reed, D. (1991). End-to-End Arguments in System Design. In Amit Bhargava(ed.), Integrated
Broadband Networks, New York, Elsevier Science Publishing Co.
18
See definition of Net Neutrality in chapter 6.1.
19
Berners-Lee, T., & Fischetti, M. (1999). Weaving the web: The original design and ultimate destiny of the World Wide Web
by its inventor. Harper San Francisco. ISBN 0062515861 (paperback), 0062515861 (hardback, out of print), 0694521256
(audio). Retrieved August 26, 2021, from https://www.w3.org/People/Berners-Lee/Weaving/Overview.html.
6
domain for both research and development in order to maximise its benefits to society 20, 21, the
Internet has been release completely with no restrictions, no licenses or other barriers. It is important
not to waste these moments of human generosity and to learn from them.
The invention of the printing press ushered in the Early Modern Era and catalysed human beings
towards the Enlightenment in their efforts to bring for the first time reason, science and people’s
rights to the centre of the governance debate. Similarly, the digital age —still with the deployment
of human rights not yet fully accomplished— could scale to the next stage of democratisation, by
putting distributed cooperation at the centre of governance design in all scales.
Despite some rooted stereotypes about contemporary democracy, it is arguable that full democracy
is not about everyone agreeing; quite the contrary, it is the ability to live together in disagreement;
meaning to cooperate while having different priorities, abilities, opinions and even values. In other
words, it is the sublimation of cooperation. It is a change of focus implicit in the word "democracy"
that implies distribution of power to the non-uniform space of the demos, the citizenry. Digital
permits to effectively meet these distributive conditions without the need to change the
representative structure of governance, but requiring a deep update.
The digital age, more than a technological change, is a change to organisational and governance
thinking22.
For all these reasons, the Internet enables a new democratic culture 23 based on a more open,
distributed, objective, complete and efficiently incorporated multistakeholder governance; with
leadership distributed according to skills and needs; made up of sovereign nodes, voluntarily
connected to each other through transparency- and traceability-based value exchanges; and that is
geared towards the achievement of shared goals in an agile, just-in-time manner. It is a matter of
choice. 24 To do so, the tools/infrastructures used should both use and permit it. The European
21st-century governance system could be improved with infrastructures inspired by this new
democratic culture that serve and include the contemporary variety of forms of civil organisation -
not always only established NGOs or academy and research 25, allowing a more balanced
representation of multiple needs governance.
20
Barranco, C. (2021, February 10). The Human Genome Project. Retrieved August 26, 2021, from
https://www.nature.com/articles/d42859-020-00101-9.
21
Human Genome Organization (HUGO). (1996). Summary of Principles Agreed Upon at the First International Strategy
Meeting on Human Genome Sequencing. Human Genome Project Information Archive. 1990-2003. Retrieved August
26, 2021, from https://web.ornl.gov/sci/techresources/Human_Genome/research/bermuda.shtml.
22
Dedeurwaerdere, T., 2007, “The contribution of network governance to sustainability impact assessment", in Toyer, S.
and Martimort-Asso, B. (eds), Participation for sustainability in Trade. Ashgate, Hampshire, 2007, pp. 209-228. ISBN:
9780754683445. Retrieved August 26, 2021, from https://biogov.uclouvain.be/staff/dedeurwaerdere/chap-
2007_Contribution%20network%20gov-%20sust.%20impact%20assessement.pdf.
23
Castells, M., (2000). The Rise of the Network Society. 1st ed. Cambridge, UK: Blackwell Publishers, INC. ISBN:978-0-631-
22140-1.
24
"There is no guarantee that networked information technology will lead to the improvements in innovation, freedom,
and justice that I suggest are possible. That is a choice we face as a society. The way we develop will, in significant
measure, depend on choices we make in the next decade." Benkler, Y. (2006). The Wealth of Networks. How Social
Production Transforms Markets and Freedom. New Haven and London: Yale University Press. 528 pp.
https://doi.org/10.1177/1084713807301373.
25
Deploying these possibilities transforms in organically incorporate, increases and updates the reach of the art. 11. 2.
of the Treaty on the EU that promote that institutions shall maintain an open, transparent and regular dialogue with
representative associations and civil society. Retrieved August 26, 2021 from https://eur-
lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF.
7
Figure 2: Imbalanced influences in policy making
Source: Corporate Europe Observatory. (2021, August 31). The lobby network: Big Tech's web of
influence in the EU. Retrieved from https://corporateeurope.org/en/2021/08/lobby-network-big-techs-
web-influence-eu
Building democracy in the present era consists also of correcting the persisting asymmetries of
contemporary democracies, many of them relating to the influence of political parties and their
clientele as the only units of governance 26.
Representativity is essential for the efficiency of democracy, but intrinsically, being a delegation of
responsibility, it implies a component of tutelage/paternalism that institutions counterbalance for
example informing their citizens. The digital age offers even better tools to even out the
representativity loopholes and the power asymmetry through more democratically distributed
supervision and action. Transparent checks and balances can be done in real time by anyone,
avoiding biases that are inevitable in intermediation.
So the networked democratic culture proposed since the invention of the Internet, produces a shift
in the ethics of governance that reduces paternalism —often the inevitable precursor to
authoritarianism— and enables a higher degree of cooperation between a solutions creating civil
society and the institutions that in turn implement these solutions in the public interest. Authors
will not enter into further detail on how to improve civil society participation and
multistakeholderist governance because participation in the digital era is a subject for another
report. It is mentioned to frame the prerequisite to it.
A prerequisite to this cooperation is the existence of infrastructures that permit
desintermediated peer-to-peer communication between all players. This should translate into
democratic digitalisation, from access to everyday infrastructures to the way these infrastructures
are created and maintained. This is the subject of this report.
It should be noted that this report will not cover the intercontinental infrastructure that enables
connection 27 and will focus on other infrastructures that are sometimes considered mere "digital
26
Bobbio, N. (2009). Teoria generale della politica. Piccola Biblioteca Einaudi Ns. pp. LXX – 684. ISBN 9788806199852.
27
TeleoGraphy. (2021, October 5). Submarine Cable Map. Retrieved October 12, 2021, from
https://www.submarinecablemap.com/.
8
tools" despite the fact that they are structurally essential in the digital era such as the one to create
and store contents, to intercommunicate or to browse the digital space.
As regards infrastructure, it has to be recalled that, before the benefits of Gutenberg’s creation could
be fully reaped, Europe had to endure no less than three centuries 28 of obscurantist reaction. In this
period political and financial monopolies, both old and new, strove to prevent people benefiting
from the printing press 29, 30, even if that was only to read freely.
This report is intended to identify ways to prevent repeating the same path with
digitalisation.
Nowadays, democratic institutions should be responsible for ensuring that digitalisation benefits
the common good: that quality access to it is not denied to the general public and, in particular, that
it is not used against the public. Institutions are responsible for ensuring that, by design and by
default31, digitalisation respects: human rights, the common good, cooperation and the entire
population’s freedom to conduct business, as well as to prevent it being driven merely by the desire
to maximise profits or partisan interests.
28
Declaration des Droits de l’Homme et du Citoyen 1789, Article XI (France). Retrieved August 26, 2021, from
https://www.britannica.com/topic/Declaration-of-the-Rights-of-Man-and-of-the-Citizen.
29
Index Librorum Prohibitorum. Retrieved August 26, 2021, from
https://en.wikipedia.org/wiki/Index_Librorum_Prohibitorum.
30
Britannica, T. Editors of Encyclopaedia (Invalid Date). Index Librorum Prohibitorum. Encyclopedia Britannica. Retrieved
August 26, 2021, from https://www.britannica.com/topic/Index-Librorum-Prohibitorum.
31
This concept that is valued in the General European Data Protection Regulation requires that any technical or
organizational measure comply with the protection of the rights and freedoms of natural persons with respect to the
processing of personal data "from the design and by default", that is to say, that it is designed based on this protection
by default.
9
Digitalisation, accelerated by the COVID-19 pandemic 32, 33, is ongoing.
Figure 3: The COVID-19 crisis has accelerated the digitalization
Source: LaBerge, L., O’Toole, c., Schneider, J., Smaje, K. (2020, October 5). How COVID-19 has pushed
companies over the technology tipping point—and transformed business forever [Survey]. McKinsey &
Company. Retrieved August 26, 2021, from https://www.mckinsey.com/business-functions/strategy-and-
corporate-finance/our-insights/how-covid-19-has-pushed-companies-over-the-technology-tipping-point-
and-transformed-business-forever.
The question obviously is not whether or not digitalisation will occur, but rather whether it will
be democratic, inclusive, and respectful of fundamental rights and, therefore, beneficial to
the majority.
The history of humanity, along with the history of the Internet, has taught us that, after any
disintermediation process 34 a reintermediation process takes place with new central players. In
the era of the printing press these were publishers; in the digital era so far these have been for
example the so-called Big Tech or GAFAM: Google, Apple, Facebook, Amazon, and
32
Robert Anderton, Valerie Jarvis, Vincent Labhard, Filippos Petroulakis, Ieva Rubene and Lara Vivian. (2020). The digital
economy and the euro area. European Central Bank. Economic Bulletin, Issue 8/2020. Pp. 128-150. Retrieved August
26, 2021, from https://www.ecb.europa.eu/pub/pdf/ecbu/eb202008.en.pdf.
33
LaBerge, L., O’Toole, c., Schneider, J., Smaje, K. (2020, October 5). How COVID-19 has pushed companies over the
technology tipping point—and transformed business forever [Survey]. McKinsey & Company. Retrieved August 26,
2021, from https://www.mckinsey.com/business-functions/strategy-and-corporate-finance/our-insights/how-covid-
19-has-pushed-companies-over-the-technology-tipping-point-and-transformed-business-forever.
34
Gellman, R., Disintermediation and the Internet, Government Information Quarterly, Volume 13, Issue 1, January 1996,
pp. 1-8, ISSN 0740-624X, https://doi.org/10.1016/S0740-624X(96)90002-7, Retrieved August 26, 2021, from
https://www.sciencedirect.com/science/article/pii/S0740624X96900027.
10
Microsoft 35.Throughout history, these new central players have forged alliances with the previous
dominant players that are willing to maintain their position displaced by the disintermediation
produced by the democratisation of access to information. These alliances contributed to slowing
the new possibilities for improvement of democratic advances by perpetuating existing
asymmetries and generating new ones, reproducing the same patterns in the new context 36.
Bearing those lessons from history in mind, one should be alert that the success of digitalisation
does not occur at the expense of human rights as collateral damage. Rather, the way in which it
would be more appropriate to discuss digitalisation at the service of democracy is from the
perspective of updating, reforming and improving modern representative democracies by
benefiting from the opportunities the new context affords us.
Digital transformation and human rights: societal and

individual digital sovereignty
Key words
Digital rights are human rights - Democide - Privacy - Data protection/GDPR - Minimisation
- By design and by default - Auditable code - Open-Source (OS) - Free/Libre Open-Source
Software (FLOSS) - Small and Medium-sized Enterprises (SMEs) - Digital infrastructures
essential for everyday life
This report will put forward an idea of disintermediated and distributed sovereignty, that
reaches the smallest stakeholder/co-responsible unit of the democratic architecture:
each citizen. To do so, human rights, such as privacy, and distributed supervision of the
institutions will be considered the starting point in the infrastructural design of a
democratic digitalisation as a precondition to optimise democracy in the 21st century.
For all the reasons set out above, it will be argued that digital sovereignty should not be limited to
sovereignty in the geopolitical meaning37. It is not just about the fact that the European Union is
fragile in the digital age when its digitalisation is greatly dependent on external stakeholders such
as GAFAM, most of which are using infrastructures that are not easily auditable 38, 39, 40.
35
Big Tech. (2021, August 25). Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Big_Tech.
36
Xnet (2021, May 14). Understanding how the transposition of the European Directive on copyright may affect our
democracies. Retrieved August 26, 2021, from https://xnet-x.net/en/inventions-democracy-copyright-censorship/.
37
See chapter 3.
38
European Commission. (2020, February). Study on open-source software governance at the European Comission.
Written by KPMG. Retrieved September 26, 2021, from https://op.europa.eu/en/publication-detail/-
/publication/1aa67278-5464-11ea-aece-01aa75ed71a1, from page 74 onwards.
39
France prohibits the ministerial use of non-sovereign cloud. See: Direction interministérielle du numérique. (2021,
September 15). Note Aux secrétaires généraux des ministres . Objet: Doctrine "Cloud au Centre" et offre Office 365 de
Microsoft. Référence : Circulaire n° 6282-SG du 5 juillet 2021 relative à la doctrine d’utilisation de l’informatique en
nuage par l’État. Retrieved October 7, 2021 from:
https://acteurspublics.fr/upload/media/default/0001/36/acf32455f9b92bab52878ee1c8d83882684df1cc.pdf.
40
Zuboff, S. (2019). The age of surveillance capitalism: The fight for a human future at the new frontier of power. New
York: PublicAffairs. 691p. ISBN 9781610395694.
11
Figure 4: Example of imbalanced distribution of ownership of technology
Source: Feldstein, S. (2019, September). The Global Expansion of AI Surveillance. Working paper.
Carnegie Endoement for International Peace. Retrieved August 26, 2021 from:
https://carnegieendowment.org/files/WP-Feldstein-AISurveillance_final1.pdf, page 1.
Using a practical example as a case study, the report analyses the obstacles to overcome and the
steps that could be taken towards democratic digitalisation in which European digital sovereignty
means both individual and societal digital sovereignty.
For that reason, the working definition of sovereignty in this report 41 takes elements which are not
usually considered when discussing digital sovereignty, but in which the EU can have a historical
advantage over other parts of the world, such as: Internet access as a right; the right to privacy
and personal data sovereignty for individuals and groups, and their effective legal
protection, free from mass profiling and surveillance; the right to the inviolability of
communications; informational self-determination; and self-sovereign identity. These
guarantees require a number of key elements including: institutional accountability, ensured by the
transparency, traceability and auditability of processes and infrastructures; Open standards and
interoperability and portability of data and formats that allow information to be freely transferred
from one entity to another without being captive to any of them; the free speech 42 without
censorship and freedom of information, in other words, democracy that is as distributed as possible,
not under tutelage.
41
See chapter 3.
42
Access Now. (2021, September). Not good enough: Apple, Google bow to government pressure, censor content
during Russian elections. Retrieved October 7, 2021, from https://www.accessnow.org/apple-google-censor-russian-
elections/.
12
Privacy is the core starting point of this schema.

As mentioned, to even out asymmetries also means the consideration of democracy as citizens’
control, as efficient as possible, over their institutions, not the other way round: i.e. transparency 43
of the institutions, privacy 44 for people 45, 46, 47.
The great totalitarianisms of the 20th century in Europe have forced reflection on the devastating
dangers of control and profiling of citizens. In this context, the term ‘democide’ 48 was coined
accompanied by the horrifying evidence that ‘democides’ —massacres of a population by its own
government— kills more people than conventional wars. Very tight societal control and population
profiling in combination with mass propaganda are the prerequisites for wiping out a population.
The right to personal data protection is a privacy-related fundamental right that guarantees
people's control over their data, the way in which data is used and the purpose for which it is used.
Simply put, to discuss data is to discuss control. It entails a series of questions: who can know who
we are, where we are, where we live, what we do during the day and during the night, what tastes,
convictions, vices, pleasures, needs, sorrows, and so forth we have. In other words, it entails asking
oneself who controls us 49.
The Data Protection Directive first, and then the European General Data Protection Regulation
(GDPR) 50, which fully came into force in May 2018, among other things, was the fruit of European
43
European Parliament. (n.d.). Transparency and ethics. At your service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/at-your-service/en/transparency: " Transparency in a democratic system enables
people to participate more easily in the decision-making process. The institutions can only enjoy greater legitimacy
and effectiveness as long as they remain fully accountable to citizens"; European Parliament. (2017, September 14).
Resolution on transparency, accountability and integrity in the EU institutions (2015/2041(INI)). Retrieved August 26,
2021, from https://www.europarl.europa.eu/doceo/document/TA-8-2017-0358_EN.html; Panizza, R. Policy
Department for Citizens' Rights and Constitutional Affairs. (2019, March). Transparency, integrity and accountability
in the EU institutions. Briefing for the PETI Committee. European Parliament. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/608873/IPOL_BRI(2019)608873_EN.pdf; European
Commission. (n.d.). European standards and principles. Retrieved August 26, 2021, from
https://ec.europa.eu/info/about-european-commission/service-standards-and-principles_en: “Certain principles
guide the Commission in its work. These include transparency (..)”.
44
The right to privacy is defined in the EU since 1950 as part of the European Convention on Human Rights: “Everyone
has the right to respect for his private and family life, his home and his correspondence.” European Convention on
Human Rights. Retrieved August 26, 2021, from https://www.echr.coe.int/Documents/Convention_ENG.pdf.
45
Zanon, B. (2015). Transparency for institutions, privacy for individuals: the globalized citizen and power relations in a
postmodern democracy. The International Review of Information Ethics, 23. https://doi.org/10.29173/irie231. Retrieved
August 26, 2021, from https://informationethics.ca/index.php/irie/article/view/231.
46
Nissenbaum, H. (1998). Protecting Privacy in an Information Age: The Problem of Privacy in Public. Law and Philosophy,
17: 559–596. Retrieved October 12, 2021 from https://nissenbaum.tech.cornell.edu/papers/privacy.pdf and Brunton,
F. y Nissenbaum, H. (2011, May 2). Vernacular resistance to data collection and analysys: A political theory of
obfuscation. First Monday, 16(5). ISSN: 13960466.
47
Solove, D. (2007). «“I´ve got nothing to hide” and other misunderstandings of privacy». San Diego Law Review, Vol.
44, p. 745, 2007, GWU Law School Public Law Research Paper No. 289. Retrieved October 12, 2021 from
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565.
48
Harff, B., ‘Death by Government by R. J. Rummel’, The Journal of Interdisciplinary History, Vol. 27, No 1, Summer 1996,
pp. 117-119, doi: 10.2307/206491, JSTOR: 206491. Retrieved August 26, 2021, from
https://www.jstor.org/stable/i210510.
49
Véliz, C. (2021). Privacy is Power: Why and How You Should Take Back Control of Your Data. Bantam Press. ISBN-10:
1787634043. ISBN-13 : 978-1787634046.
50
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation). Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679. See more details in chapter 3.4 and annexed
Factsheet 3.
13
awareness out of the horrifying experience of institutions, such as the Gestapo and the Stasi, that
had tight control over data of the population. GDPR is, among other things, an effort to prevent
history from repeating itself 51.
Even if there are still gaps, by design or through inertia, 52 in its implementation at the higher
standards of protection 53, 54, 55, with GDPR Europe has managed to set up an initial barrier to the
renewed public/private interests in asymmetrical control over and profit from the exploitation of
our personal data.
Some key principles promoted by the GDPR should be highlighted.
One of these principles is the idea that people’s privacy must be guaranteed by design and by
default56 instead of being a complementary feature.
Moreover, the principle of minimisation 57 establishes that, except in the case of duly justified and
reported exceptions, no party may request or elicit more information than what is strictly necessary
for providing or performing a service.
In order to avoid a misleading interpretation of the function of this legislation, it is important to
recall that protection of personal data increases democracy together with strong institutional
51
Waxman, O. B. (2018, May 24). The GDPR Is Just the Latest Example of Europe's Caution on Privacy Rights. That Outlook
Has a Disturbing History. Time. Retrieved August 26, 2021, from https://time.com/5290043/nazi-history-eu-data-
privacy-gdpr/.
52
One example of gaps, including institutional gaps, in the in-depth enforcement of this principle guaranteeing a right
to high-quality privacy is the fact that the electoral roll is handed over to political parties, a ‘traditional’ practice in
much of Europe. It can be easily grasped how dangerous this institutional practice is if our imagination travels back
to the time of authoritarian regimes in Europe. Xnet (2021, May 6). We need to put an end to the abuse of EU citizens’
personal data in elections. Retrieved August 26, 2021, from https://xnet-x.net/en/end-abuse-eu-citizens-personal-
data-elections/.
53
Daigle, B. And Khan, M. (2020, June). The EU General Data Protection Regulation: An Analysis of Enforcement Trends
by EU Data Protection Authorities. Journal of International Commerce and Economics. United States International Trade
Commission. Retrieved August 26, 2021, from
https://www.usitc.gov/publications/332/journals/jice_gdpr_enforcement.pdf.
54
The case of Spain. Xnet (2020, March 3). Privacy and Data Protection against Institutionalised Abuses: Transparency
for institutions, privacy for the people – Reforms of data policies to correct the asymmetry and lack of protection of
people before institutions and companies. Retrieved August 26, 2021, from https://xnet-x.net/en/xnet-privacy-data-
protection-institutionalised-abuses/.
55
Access Now. (2021, May). Three years under the EU GDPR. An implementation progress report. Retrieved August 26, 2021,
from https://www.accessnow.org/cms/assets/uploads/2021/05/Three-Years-Under-GDPR-report.pdf.
56
First mention, recital 78, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and on the free movement of such
data, and repealing Directive 95/46/EC (General Data Protection Regulation). Retrieved August 26, 2021, from
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679.
57
First mention, recital 156, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation). Retrieved August 26, 2021, from
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679.
14
transparency 58, 59, also by design and by default. The lack of privacy for citizens and of transparency
for institutions is considered an exception and, as such, must be duly justified and reported.
The way to be able to audit the digital tools and infrastructure to ensure that these principles are
met is by making their source code as accessible as possible, available to be audited in a distributed,
disintermediated and democratic way following the previous definition 60. From this perspective,
Open-source tools are preferable above the rest 61, 62. In particular Free/Libre Open-source Software
(FLOSS) 63 has another fundamental advantage that will be detailed in chapter 6: it contributes to
driving social-technological entrepreneurship because it is made available to everyone. The reuse
and publication of code creates a circular economy, as it never starts from scratch. The code is used
and improved by anyone and, at the same time, is always available. The resilience of the FLOSS
code endures and keeps public investment public.
This perspective of rationalisation, responsible use of public money and change in individual
but also (and above all) institutional consumption patterns is also a way to reduce our
ecological footprint.
Framework of the report

In summary, there are two layers when discussing democratic digitalisation. When talking about
digitalisation, there is sometimes a tendency to refer only to peoples’, companies’ and institutions’
capacity to operate in the digital sphere: digital training and education vs lack of civic participation
and e-democracy; access to information and knowledge or media literacy vs disinformation 64.
58
This counterpart can be found in Article 85 of the GDPR: data protection cannot be the excuse to limit the right to
information, the fight against abuses, to be the pretext to declare the evidence inadmissible or for generating
Strategic Lawsuits Against Public Participation (SLAPPs) or invalidating evidence from Whistleblowers. See case study:
Xnet (2020, February 25). The Lack of Enforcement of Article 85 in Spain – The Lack of Protection of Freedom of
Information in the Data Protection Act. Retrieved August 26, 2021, from https://xnet-x.net/en/xnet-lack-transposition-
art85-spain-freedom-information-data/.
59
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of
persons who report breaches of Union law. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32019L1937&qid=1628154546037.
60
See chapter 1.1.
61
Open-source software. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Open-source_software.
62
See detail in chapter 7 and annexed Factsheet 6.
63
Free and open-source software. (n.d.). Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Free_and_open-
source_software.
64
With another schema, also Yochai Benkler speaks about “layers” in Part Three “Policies of Freedom at a Moment of
Transformation” chapter 11 “The Battle Over the Institutional Ecology of the Digital Environment” of his book “The
Wealth of Networks.” (2006): “For several years I have been using a very simple, three-layered representation of the
basic functions involved in mediated human communications. These are intended to map how different institutional
components interact to affect the answer to the basic questions that define the normative characteristics of a
communications system—who gets to say what, to whom, and who decides? These are the physical, logical, and
content layers. The physical layer refers to the material things used to connect human beings to each other (…). The
content layer is the set of humanly meaningful statements that human beings utter to and with one another (…). The
logical layer represents the algorithms, standards, ways of translating human meaning into something that machines
can transmit, store, or compute, and something that machines process into communications meaningful to human
beings. (…) In each and every one of these layers, we have seen the emergence of technical and practical capabilities
for using that layer on a nonproprietary model that would make access cheaper, less susceptible to control by any
single party or class of parties, or both. In each and every layer, we have seen significant policy battles over whether
these nonproprietary or open-platform practices will be facilitated or even permitted”. Benkler, Y. (2006). The Wealth
of Networks. How Social Production Transforms Markets and Freedom. New Haven and London: Yale University Press.
Benkler, Y. (2006). The Wealth of Networks. How Social Production Transforms Markets and Freedom. New Haven and
15
But this is only the second layer of digitalisation.

There is another necessary preliminary level: the access, infrastructure and tools with which
people, companies and institutions perform their everyday activity, their civic participation
and media literacy. When they are not sovereign and democratic to the extent previously
described, anything done with it will happen in a framework with no guarantees that there
will be no deviation from a sovereign and democratic path and could jeopardise the
democratic advances being sought. Operating in clouds where settings, data and content are
generated and stored in a non-sovereign way is an example of that.
This report will analyse only this first layer of digitalisation as a prerequisite for the second one.
Figure 5: Layers to be considered for a democratic and sovereign digitalisation
Source: The authors own elaboration.
Ensuring democracy and human rights by design and by default in the infrastructure
digitalisation of Europe is the precondition to optimise democracy in the 21st century.
In other words, for the digital transition / digitalisation to be democratic and human-rights based,
the two stages have to be fulfilled.
The first one is to build a digital transition in which all basic infrastructures for the everyday digital
life of the population meet the minimum requirements that allow verification of respect for human
rights and correct any shortcomings in a distributed and constant way.
London: Yale University Press. 528 pp. https://doi.org/10.1177/1084713807301373 pp.

https://doi.org/10.1177/1084713807301373.
16
This report will explore this first stage by starting out from a case study, described in the next
chapter, to install such infrastructure in a specific field and from the issues encountered while doing
so.
In particular, some loopholes at the institutional level in the consideration of the most everyday
digital infrastructures have been identified 65. These infrastructures are often taken for granted while
attention is focused on longer-term experimental areas. However, to put it simply, a server, a
browser, an email service or chat are part of the essential infrastructures of citizens' everyday lives
just as much as roads. It is appropriate to speak of essential infrastructures for the general interest
as well as for those tools/infrastructure.
To draw an inter-network comparison to understand why the term "infrastructure" 66 is used, data
privacy and sovereignty leads to ‘herd immunity’ —just as happens with vaccines— when the whole
group exercises it correctly because, when just one person opens the door to data capture and
abuse, the whole group is affected and the future of each member’s opinions is radically changed,
as it is their fate. The result is that the democratic debate and people behaviour are also radically
changed.
The fact that this basic digitalisation is most intensively provided by only a few big digital
companies, even in the context of institutions and essential services, is an indication that a
wrong signal67, 68, 69, 70 is being sent to the market 71: that digitalisation can take place sacrificing 72
65
See chapters 2,4,5, 6, 7 and related annexed Factsheets.
66
Snowden, E. (2021). The Insecurity Industry. Retrieved October 13, 2021 from
https://edwardsnowden.substack.com/p/ns-oh-god-how-is-this-legal.
67
European Court of Human Rights. (2021, May). Factsheet - New technologies. Retrieved September .26, 2021, from
https://www.echr.coe.int/documents/fs_new_technologies_eng.pdf.
68
Research and Documentation Directorate. Fact sheet – Protection of personal data. Court of Justice of the European
Union. Retrieved September 26, 2021, from https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-
10/fiche_thematique_-_donnees_personnelles_-_en.pdf.
69
Kavya. (2021, June 14). Big Tech vs GDPR. Cookie Law Info. Retrieved September .26, 2021, from
https://www.cookielawinfo.com/big-tech-vs-gdpr/.
70
Business and Human Rights Resource Centre. (2020, October 9). Major tech companies respond to lawsuit over child
labour in cobalt mines, argue that global supply chains do not fall under the scope of the Trafficking Victims Protection
Reauthorization Act. Retrieved September .26, 2021, from https://www.business-humanrights.org/en/latest-
news/major-tech-companies-respond-to-lawsuit-over-child-labour-in-cobalt-mines-argue-that-global-supply-
chains-do-not-fall-under-the-scope-of-the-trafficking-victims-protection-reauthorization-act/.
71
European Commission. (2018, July 18). Antitrust: Commission fines Google €4.34 billion for illegal practices regarding
Android mobile devices to strengthen dominance of Google's search engine. Retrieved September .26, 2021, from
http://europa.eu/rapid/press-release_IP-18-4581_en.htm 232; European Commission. (2017, June 27). Antitrust:
Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own
comparison shopping service. Retrieved September .26, 2021, from http://europa.eu/rapid/press-release_IP-17-
1784_en.htm; The Economist. (2018. June 2). American tech giants are making life tough for startups. Retrieved
September 26, 2021, from https://www.economist.com/business/2018/06/02/american-tech-giants-are-making-life-
tough-for-startups; AI trends. The Business and Technology of Enterprise AI. (2021, May 20). Executive Interview: Paul
Nemitz, Principal Adviser on Justice Policy for the European Commission, Brussels. Retrieved September 26, 2021,
from https://www.aitrends.com/executive-interview/executive-interview-paul-nemitz-principal-adviser-on-justice-
policy-for-the-european-commission-brussels/.
72
Amnesty International (2019, November 21). Surveillance giants: How the business model of Google and Facebook
threatens human rights. Retrieved August 26, 2021, from
https://www.amnesty.org/en/documents/pol30/1404/2019/en/.
17
Small and Medium-sized Enterprises (SMEs); by sacrificing innovation as valuable and

distributed human capacity; and sometimes human rights themselves, 73, 74.
On the contrary, the practical Actions/Prototypes of this report aim to envision opportunity to
restructure the economy from the standpoint of democratic, sovereign digitalisation, in which
human rights are the raw material for entrepreneurial design.
To ensure these fundamental requirements, this report will also dedicate a closing section
envisioning how the European Union, in the framework of the citizens’ freedom to conduct
business 75, could lead to a kind of Keynesianism 76, 77 of democratic digitalisation. This analogy is used
to draw attention to how the design of institutional investment in digitalisation is made. It will be
argued that to guarantee democratic digitalisation, investment in digital transformation is needed
that, ‘by design and default’, as a foundational starting point, respects human rights and permits
multi-level and multistakeholder democratic, disintermediated access to information, cooperation
and action. These infrastructure investments, with these specific deferential characteristics, will
result in a positive externality, acting as a stimulus to key economic sectors and boosting Europe’s
competitiveness in the technology race.
On this purpose 3 Actions/Prototypes will be proposed.
Explanatory excursus - Presentation of the proposed Actions / Prototypes
This report also, and above all, aims to propose solutions. For this reason, it not only provides
policy suggestions but also has at its core the proposal of 3 Actions/Prototypes to solve the
issues detected.
While the major supra digital investments proposed by the EU described in chapter 2 are
necessary for Europe to make up for lost time in digitalisation, it is equally important to anchor
the digital transformation on healthy, democratically accessible for all essential
tools/infrastructures.
As seen in chapter 6 and annex, the EU has a well-established doctrine for determining what is
considered essential infrastructure: an infrastructure to which third parties need access in order
to offer their products or services. An infrastructure is essential when it is considered that there
is no reasonable alternative and that replication of the infrastructure is not possible due to
economic, technical and/or legal issues.
The infrastructures proposed to be prototyped in this report in order to build the digital
transformation on a more democratic basis meet these requirements. Action/Protopype 1 is the
73
United States Department of Housing and Urban Development v Facebook, Charge of Discrimination. (2019, March
28). Retrieved September .26, 2021, from https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf.
74
Wheeler, C. (2019, December 22). Chinese tech giant Huawei “helps to persecute Uighurs”. The Times. Retrieved
September .26, 2021, from https://www.thetimes.co.uk/article/chinese-tech-giant-huawei-helps-to-persecute-
uighurs-7dfcb56nw# ; Ochab, E.U. (2020, January 6). When A Tech Company Engages In Severe Human Rights
Violations. Forbes. Retrieved September .26, 2021, from https://www.forbes.com/sites/ewelinaochab/
2020/01/06/when-a-tech-company-engages-in-severe-human-rights-violations/.
75
Charter of Fundamental Rights of the European Union, Article 16: “Freedom to conduct a business”.
76
Keynesian economics. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Keynesian_economics.
77
Seccareccia , M. (Winter 2011-12). The Role of Public Investment as Principal Macroeconomic Tool to Promote Long-
Term Growth: Keynes's Legacy. International Journal of Political Economy Vol. 40, No. 4, Perspectives on the Great
Recession and Policy Alternatives to Combat Stagnation in the Industrialized World, pp. 62-82 (21 pages). Taylor &
Francis, Ltd. ISSN 0891-1916/2012 DOI 10.2753/IJP0891-1916400403. Retrieved August 26, 2021, from
https://www.jstor.org/stable/41739520.
18
case study of the report; Actions/Prototypes 2 and 3 are derived from the obstacles detected
during the on-going implementation of Actions/Prototypes 1.
Action/Protopype 1 is a scalable infrastructure for everyday digital activity, the
creation and storage of data and contents.
Action/Protopype 2 is a decentralised infrastructure for sovereign and democratic
interpersonal communication to replace the current email system due to the
problems of individual and societal sovereignty outlined in chapter 3.
Action/Protopype 3 considers the browser an essential infrastructure without
which one would be excluded from the digital space if one did not have sufficient
technical knowledge.
Figure 6: Needs for everyday life sovereign digitalisation of society
Source: The authors own elaboration.
19
2. Starting point - Case study. DD, Democratic Digitalisation

Plan: A prototype as a replicable model and guide for
detecting societies’ current digitalisation problems
This report takes as a starting point for analysis the concrete case of prototyping the Democratic
Digitalisation Plan for Education designed by the digital rights organisation Xnet 78, an organisation
for the defence of digital rights and the renewal of democracy in the digital age, active since 2008
in Spain. The main authors of this report are members of Xnet, speaking from first-hand experience.
The plan is being put into practice in three schools in the city of Barcelona in cooperation with
Barcelona City Council and the Consortium for Education of the City. Around 30 more schools are
waiting for the results to adopt the model. NotaBLE, a prototype for music education, supported by
Bit-Habitat, Barcelona Institute of Technology, is in progress to work on interoperability and
transition with preexisting non open-source tools.
Leveraging this direct experience with the prototype, the identified practical obstacles to the
democratic digitalisation of society and its administrations will be described in this report and some
solutions will be put forward.
The Xnet Democratic Digitalisation Plan comes mainly in response to an often too short-term view
of institutional design for digitalisation of essential services. This results in major corporate
strategies taking advantage of the institutional planning loopholes by occupying the space left
unattended in many strategic areas.
The starting point of this analysis is a flagrant case where mass penetration by monopolistic private
corporations has taken place, namely education 79, 80, 81, 82, 83.
The problem with the institutional policies —or often lack of policies— that permit this type of
digitalisation is that they are detrimental to digital sovereignty. In other words, they can often
generate deficits 84 in some crucial areas such as privacy; data and information sovereignty; national
law enforcement; transparency, freedom of expression and access to information; or effective legal
protection.
78
Xnet. (n.d.). Xnet. Retrieved August 26, 2021, from https://xnet-x.net.
79
Defenddigitalme (2020, October). The State of Data 2020 report. Mapping a child's digital footprint across England's
state education landscape. Policy recommendations for building a rights' respecting digital environment. (V.2.2.).
Retrieved August 26, 2021, from https://defenddigitalme.org/wp-content/uploads/2020/11/The-state-of-data-2020-
v2.2-1.pdf.
80
Singer, N. (2017, May 13). How Google Took Over the Classroom. The New York Times. Retrieved August 26, 2021, from
https://www.nytimes.com/2017/05/13/technology/google-education-chromebooks-schools.html.
81
Vamvakitis, J., Director - International Google for Education (2019, January 22). Around the world and back with
Google for Education. Retrieved August 26, 2021, from https://www.blog.google/outreach-
initiatives/education/around-the-world-and-back/.
82
Mohr, C., User Experience Lead - Google for Education (2018, July 29). Google Apps For Education Now Has More Than
50 Million Users. Retrieved August 26, 2021, from https://www.teachthought.com/education/google-apps-for-
education-now-has-more-than-50-million-users/.
83
Grupo DIM – Didáctica, innovación, multimedia & Associació Espiral, Educació i Tecnología (2020, August 18).
Proyecto de investigación: Centros innovadores. Estudio-4 (2020): Actividades formativas durante la crisis sanitaria.
Retrieved August 26, 2021, from https://docs.google.com/spreadsheets/d/e/2PACX-
1vTeukpbMsPY4_FPhA0qox5ifrSpuhBofFMGDPN9WmiPoJZALLYwebnVh1w2ENO0D7Q_wDwCg3Sq8UXN/pubhtml
?gid=464625902&single=true.
84
Amnesty International (2019, November 21). Surveillance giants: How the business model of Google and Facebook
threatens human rights. Retrieved August 26, 2021, from https://www.amnesty.org/en/documents/
pol30/1404/2019/en/.
20
The case of the Democratic Digitalisation Plan for Education

In 2019, the case began with the action initiated by various families 85, 86 to provide another outlet for
the digitalisation of their children's educational institutions in Barcelona.
The families behind the initiative had been asked to sign to allow the entire education of their
children (aged between four and nine years old) to take place on one of the major private corporate
platforms: each and every school activity including internal and external email; storage of all data,
from content to assessments, exercises and content created by students and teachers; chats;
relationships with the education community and families; virtual campus; etc.
This request caused numerous families concern and unease, especially because they had no other
options than to sign: no alternative solution that was equally effective and could compete with the
proposed solution, which was even free of charge for the school and for the Government.
In the last few years, major changes have been underway in schools in many parts of Europe, and –
as in the case under consideration – in Spain. These changes are due to, or under the pretext of, the
unfavourable economic situation. Education is also being progressively considered an
outsourceable product that can be offered to companies. The ultimate aim of education is being
reshaped to place it more at the service of the labour market, but reducing at the same time
attention to other values, such as the achievement of equal opportunity and freedom, critical
thinking and emancipation of citizens 87, 88, 89, 90, 91. It is in this context that the deployment of free
digital solutions produced by major private corporations takes place, with the absence of any in-
depth institutional analysis of the process and of what it means when these platforms are said to be
free of charge 92. With this roll-out, FLOSS (Free/Libre Open-Source Software) —admittedly, less easy
to use— and options and tools such as Moodle, which had been widely used in the school setting
for years, are being pushed aside.
The model being abandoned is one that is also free in many respects, could be adapted to meet
requirements, and is more distributed, transparent and auditable in terms of privacy. Instead of
being fixed, it is being replaced with one that is centralised and closed, which has code that cannot
be audited by schools, and which is in the hands of companies, some of which base much of their
core activities on extracting and processing data.
85
Pueyo Busquets, J. (2019, September 18). La Generalitat revisará el uso de Google en las aulas. El País. Retrieved August
26, 2021, from https://elpais.com/ccaa/2019/09/18/catalunya/1568832257_627354.html.
86
Márquez Daniel, C. (2019, September 12). El curso escolar arranca con inquietud sobre la protección de datos. El
Periódico. Retrieved August 26, 2021, from https://www.elperiodico.com/es/educacion/20190912/inquietud-
proteccion-datos-menores-uso-google-escuela-catalan-7631386.
87
Verger, A. (2012). Framing and selling global education policy: the promotion of public–private partnerships for
education in low-income contexts. Journal of Education Policy, 27(1), 109-130.
88
Ball, S. J. and Olmedo, A. (2012). Global Social Capitalism: using enterprise to solve the problems of the world.
Citizenship, Social and Economic Education, 10(2 & 3), 83–90.
89
Bermúdez, A. (2015). Four Tools for Critical Inquiry in History, Social Studies and Civic Education. Revista de Estudios
Sociales, 52, 102-118.
90
Hursh, D.W. (2016). The end of public schools. The corporate reform agenda to privatize education. New York:
Routledge.
91
Saura, G. (2016). Neoliberalización filantrópica y nuevas formas de privatización educativa: La red global Teach For All
en España. Revista de la Asociación de Sociología de la Educación, 9(2), 248-264.
92
See the chapter 7.3 on "Risks to competition of infrastructural commercial services "for free"".
21
The legitimate interests of and benefits to the corporations providing these services are clear 93. The
societal benefits are less clear, in light of the fundamental freedoms and democracy that form the
goals of this report.
The benefits are uncertain not only in terms of data sovereignty, but also in terms of the
monopolistic digital “monoculture” which creates captive customers from very early ages.
Furthermore, the permission forms that the families have to sign represent a failure in duty on the
part of institutions since it transfers to families some of the main legal obligation on data protection.
On the other hand, there is no alternative apart from exclusion, so the consent which the families
give is ‘vitiated and limited consent’, since the families do not have any other option.
Because of all this, some of the concerned families asked the digital rights defence organisation Xnet
for advice.
Together, in an example of multi-stakeholder cooperation between people concerned by the
problem and specialists, they designed the Democratic Digitalisation Plan for Education, "DD", a
Plan adaptable not only to the education sector, but also within the public administration, health
sector and many other settings.
New stakeholders joined: The Federated Associations of Families of Students (aFFaC); the
Directorate for Democratic Innovation; the Office of the Democratic Innovation Commissioner and
the Office of the Digital Innovation Commissioner of Barcelona Municipal Government; and the
Consortium for Education. They supported the project, and together built a model, which has been
piloted in three primary and secondary schools in Barcelona, and developed by the micro-
enterprises 94 that were awarded with the public contract tender to run the pilot scheme. The project
is already gradually enabling the hiring of new employees 95, 96, 97.
As will be shown in the following description of the prototype, the tools necessary to create
alternatives already exist, but they need institutional commitment for their improvement.
93
Leaked Facebook Docs Depict Kids as 'Untapped' Wealth. Wall Street Journal. (2021) The facebook files. A Wall Street
Journal investigation. Retrieved October 7, 2021 from https://www.wsj.com/articles/the-facebook-files-
11631713039?mod=bigtop-breadcrumb.
94
Larraz, A., Viñolas, J.M., Estrada, N. (n.d.). IsardVDI. Retrieved October 18, 2021 from: https://www.isardvdi.com/ and
3&PUNT SOLUCIONS INFORMÀTIQUES, S.L. (n.d.). 3ipunt. Retrieved October 18, 2021 from: https://tresipunt.com/.
95
Blanchar, C. (2020, December 10). Escuelas que buscan alternativas a Google. El País. Retrieved August 26, 2021, from
https://elpais.com/espana/catalunya/2020-12-10/escuelas-que-buscan-alternativas-a-google.html.
96
Agencia EFE. (2020, December 10). Xnet inicia plan piloto para digitalización segura en 5 colegios de Barcelona. La
Vanguardia. Retrieved August 26, 2021, from https://www.lavanguardia.com/vida/20201210/6109196/xnet-inicia-
plan-piloto-digitalizacion-segura-5-colegios-barcelona.html.
97
ACN Barcelona. (2020, December 10). Cinc centres de Barcelona inicien una prova pilot d'un pla de digitalització amb
programari obert. Corporació Catalana De Mitjans Audiovisuals. Retrieved August 26, 2021, from
https://www.ccma.cat/324/cinc-centres-de-barcelona-inicien-una-prova-pilot-dun-pla-de-digitalitzacio-amb-
programari-obert/noticia/3065191/.
22
Action/Prototype 1 - Democratic Digitalisation Plan pilot

scheme
Action/Prototype 1 - Democratic Digitalisation Plan pilot scheme

The first proposed Action/Prototype of this report is already in place in three schools in
Barcelona. DD aims to solve the issues previously described in the area of cloud and
infrastructure sovereignty for everyday digital activity, creation and storage of data and content.
Starting in the field of Education, it also aims to be a ‘scalable solution’ for other fields and
administrations.
The pilot scheme has been designed by Xnet on the basis of its Democratic Digitalisation Plan98
as follows:
With a view to comprehensively safeguarding the educational community’s digital
rights so as to ensure digitalisation that respects people’s digital sovereignty by
guaranteeing privacy and data control, the tools need to be open-source so that
they are auditable in a constant, distributed and disintermediated way.
The tools are built from Free/Libre Open-Source Software that are already
widely used and have proved to be robust, such as the software of Nextcloud
(cloud, calendar, surveys, collaborative documents, etc.), Moodle (classroom),
WordPress (sites), and Big Blue Button (video calls) among others [see below case
on Action/Prototype 1 FLOSS components].
These auditable softwares are merged in a suite/virtual campus with a single sign-
on system. The code is improved to make them extremely user-friendly, so as to
correct the difficulties in usability in the use of FLOSS in order to provide an
auditable, agile alternative to the corporate tools most commonly used in schools.
Systems of interoperability both with other open-source tools or non-open-
source tools are put in place so as to avoid customers being trapped by a single
product.
Technical and training services are being developed to provide support during
migration. It is important to stress that the project is designed so that it can be
used by people who are neither open-source software users nor are interested in
understanding the technicalities.
The result is released again in FLOSS, using the AGPLv3 licence 99.
Legal documents are generated so that families and schools can comply with the
the GDPR and with the higher data protection standards, while avoiding the afore
mentioned vitiated consent.
Another relevant aspect is the adoption of servers —in-house or outsourced—
that are secure from a technical standpoint and GDPR-compliant, but also
respectful of human rights such as freedom of expression and effective legal
protection. At the moment, this is the aspect that is most commonly omitted from
digitalisation-planning designs: there is discussion of cloud security, but not as
much of other fundamental rights. The server is our digital home; it should be a
secure place, regardless of whether or not we use commercial solutions. This
entails having suppliers with operational protocols that respect both
98
Xnet. (2020, June 3). Plan para la Privacidad de Datos y la Digitalización Democrática de la Educación. Retrieved August
26, 2021, from https://xnet-x.net/es/privacidad-datos-digitalizacion-democratica-educacion-sin-google/.
99
Source code: https://gitlab.com/digitaldemocratic/digitaldemocratic.
23
people/customers (in this case, schools and the education community) and public
authorities. The following safeguards should always be in place:
While customers undertake not to publish any content that could violate the rights
of third parties or that could break the law, the supplier should have no obligation
to remove any content from the server unless it has ‘effective knowledge’ that the
activity or the information stored is either unlawful or harmful to a third party. For
these purposes, there will be deemed to be effective knowledge when a judicial or
administrative decision blocking or removing the content is in force and the
supplier is aware of it.
The customer must be informed in the first place.
Server passwords may only be changed, after the initial set-up, by the customer
and must not be known by the supplier. Furthermore, customers may employ two-
factor authentication and encryption to further secure their accounts.
It is therefore appropriate to amend procurement specifications to incorporate
more stringent standards on privacy, respect for users’ rights, transparency and
security. This should also help to encourage major corporations to improve some
aspects of their services.
Action/Prototype 1 FLOSS components
Some of the existing software packages that appear in the new integrated virtual campus:
NEXTCLOUD 100: Nextcloud is a project to develop client-server programs with the goal of
creating a file-storage service, while adding functionalities to the server in the form of
applications (calendar; maps; blogs; music players and libraries; webmail; office software
suites; text editors; task, note and password managers; etc.). Its functionality is similar to that
of corporate service providers; what makes it different is that it is open-source software,
enabling it to be installed on a private server. Customers have direct control over their data,
since they administer the server where those data are located, including tools to enable
control over monitoring of data exchange and communication (control over access to files,
workflow, audit logs, exchange controls, etc.). It supplies customers such as the French
Ministry of the Interior and Gendarmerie; the Netherlands Ministry of Education; several
Swedish Government agencies; the German Federal Government; etc 101.
MOODLE 102: Those familiar with Moodle know that it has infinite possibilities, but it has a user-
friendliness problem for non-experts. This is what has been remedied in the first prototypes
now in operation. It is a learning content management system (LCMS), the precursor of
systems such as Classroom. Created in Australia in 2001, it has 160 million registered users and
has been translated into 120 languages. It is open-source software, designed to provide
educators, administrators and students with an integrated system based on the pedagogical
theory of the social constructivism of learning and on-line learning. It is partly funded through
the providers of services certified by the Moodle Partners network, since its main
100
Nextcloud GmbH (n.d.). Nextcloud. Retrieved October 18, 2021 from: https://nextcloud.com/.
101
Rees, M. (2019, August 27). Le ministère de l’Intérieur migre sur la solution libre Nextcloud. NextImpact. Retrieved
August 26, 2021, from https://www.nextinpact.com/news/108156-le-ministere-linterieur-migre-sur-solution-libre-
nextcloud.htm; Scheuer, S., Kerkmann, C. (2019, August 26). EU countries rely on the German start-up Nextcloud.
Handelsblatt. Retrieved August 26, 2021, from https://www.handelsblatt.com/technik/it-Internet/cloud-dienste-eu-
staaten-setzen-auf-deutsches-start-up-nextcloud/24942352.html?ticket=ST-9385208-rLwjIPInaqFGyfaG2K74-ap4;
Vaughan-Nichols, S.J. (2019, September 3). EU turns from American public clouds to Nextcloud private clouds. ZDNet.
Retrieved August 26, 2021, from https://www.zdnet.com/article/eu-turns-from-american-public-clouds-to-
nextcloud-private-clouds/.
102
Moodle (n.d.). Moodle. Retrieved October 18, 2021 from: https://moodle.org/.
24
characteristics are its flexibility and the possibility of personalising its environments with
various functionalities, which can be expanded by installing plug-ins and add-ons. It can
provide services from any place, at any time, on any device, using any browser. Its customers
include the London School of Economics, the State University of New York, the United Nations
and the Open University (UK) 103.
BIGBLUEBUTTON 104: Blindside Networks offer an open-source-software videoconferencing

system for online learning. It enables sharing of audio and video; presentations with expanded
whiteboard capabilities, such as a pointer, zoom and drawing; public and private chat; shared
office use; VoIP integrated with FreeSWITCH; and supports presentation of documents,
including pdfs. In addition to various web-conferencing services, it is integrated with many of
the main learning and content-management systems (Canvas, Moodle, WordPress, etc.). It is
a supplier to customers such as the US Department of Defence and 500 schools in Baden-
Württemberg, Germany 105.
ETHERPAD 106: Etherpad is a web-based collaborative real-time editor. It enables several

authors to edit a text document simultaneously, and to see all those participating in the edits
in real time, with the capability of showing each author’s text in a different colour. There is also
a chat window in the sidebar to enable direct communication. The software was launched in
November 2008. Google acquired it in December 2009 and the source code was released as
open-source later that month. The Etherpad Foundation coordinates development of the
system.
WORDPRESS 107 : This is a content-management system (CMS), launched on 27 May 2003, and
enables the creation of any type of website. It originally found great popularity for the setting-
up of blogs, and then became one of the main tools for commercial website creation.
WordPress is developed in the PHP language for environments that run MySQL and Apache,
under a GNU General Public License and it is open-source software. As of March 2019, it was
used by 33.4% of all websites and by 60.3% of all CMS-based sites.
Others: Maadix 108, Jitsi 109, Matrix 110
103
Moodle. (n.d.). Acerca de Moodle. Retrieved August 26, 2021, from
https://docs.moodle.org/all/es/Acerca_de_Moodle#Mundialmente_probado_y_de_confianza; Dent, C. (2018,
June 25). Moodle, la plataforma educativa más manejable del mundo, se expande a España. Retrieved August 26, 2021,
from https://moodle.com/es/news/moodle-la-plataforma-educativa-mas-utilizada-del-mundo-se-expande-espana/.
104
Big Blue Button Inc. (n.d.). Big Blue Button. Retrieved October 18, 2021 from: https://bigbluebutton.org/.
105
Big Blue Botton. (2017, May 25). Big Blue Button 1.1 Released. Retrieved August 26, 2021, from
https://bigbluebutton.org/2017/05/25/bigbluebutton-1-1-released/; Ministry for Culture, Youth and Sport Baden-
Wuerttemberg. (2020, June 22). Video conferencing tool for schools in the southwest [Press release]. Retrieved August
26, 2021, from
https://km-bw.de/,Lde/Startseite/Service/2020+06+22+Big+Blue+Button+und+Fortbildungsangebote.
106
The Etherpad Foundation. (n.d.). Etherpad. Retrieved October 18, 2021 from: https://etherpad.org/.
107
Automattic Inc. (n.d.). WordPress.com. Retrieved October 18, 2021 from: https://wordpress.com/.
108
MaadixZone (n.d.). Maadix. Retrieved October 18, 2021 from: https://maadix.net/.
109
8x8, Inc. (n.d.). Jitsi. Retrieved October 18, 2021 from: https://jitsi.org/.
110
The Matrix.org Foundation C.I.C. (n.d.). Matrix. Retrieved October 18, 2021 from: https://matrix.org/.
25
Map of solutions proposed in this report. Issues relating to the

democratic digitalisation of Europe detected by implementing
the prototype of the Democratic Digitalisation Plan
Map of issues and solutions of this report

The prototype and its implementation raise various problems that concern the whole European
digital transition plans.
Democratic digitalisation has been defined in this work as a digital transition based on human
rights and cooperation, by design and by default. It has presented the need for the digital
sovereignty to reach the smallest stakeholder/co-responsible unit of the democratic
architecture: each citizen.
The first level to analyse the digitalisation of societies is the analysis of the digital infrastructures
of everyday life.
The report explores this first stage by starting out from the case study installing digital sovereign
infrastructures in the field of education and extrapolates wider general current problems for
democratic digitalisation in the EU.
The problems found while implementing Xnet Plan for Democratic Digitalisation are:
1 Lack of data-storage/cloud service providers that allow users full control of
their data and effective legal protection, meaning providers that allow users —
individual, organisations and institutions— to exercise human-rights-centred data
sovereignty as described in point h) of this chapter.
• Issues addressed in chapter 2, chapter 3.3 and annexed Factsheet 2.
• These problems are also derived from problems of public procurement
addressed in chapter 7 and related annexed Factsheets.
o Solution developed in Xnet's prototype Digitalisation Plan in the
present chapter 2 and Action/Prototype 1; and chapter 7.
2 Lack of providers of user-friendly and agile tools/infrastructures for

generating content and operating online that allow distributed auditability of
their code and full interoperability and portability of standards, contents and
data so as to ensure data sovereignty. The tools exist, but they are not promoted.
Lack of open-source and free/libre open-source infrastructures.
o Solution developed in Xnet's prototype Digitalisation Plan as a
replicable model, in this chapter 2 and related Action/Prototype 1;
chapter 5 and Action/Prototype 3.
3 Lack of sovereignty has as its gateway the provision of email services.

• Issues addressed in chapter 4 and related annexed Factsheet 4.
26
o Solution developed in Action/Prototype 2; and chapter 7.

4 Difficulties in applying the higher principles in relation to enforcement of the EU
regulation such as the right to privacy, owing to several problems including: vitiated
consent to the conditions of items 1, 2 and 3; the lack of institutional legal recourse
provided to the sector for proper protection.
• Subject treated in chapter 3.4 and related annexed Factsheet 3.
o Solution in progress in the prototype of the Xnet Digitalisation Plan as
a replicable model, in this chapter 2, Action/Prototype 1.
5 Small and medium size distributed businesses that can resolve the problems set
out in items 1, 2, 3 and 6 are de facto not allowed to offer services. This produces a
circle in which they are not ready to do so. There is a problem of institutional will,
design and funding which perpetuates the monopolistic digital ‘monoculture’ that
brings about the problems detailed in items 1, 2, 3, 4 and 6 and creates captive
customers. This sends the wrong signal to the market and prevents the deployment
of potential for business diversity and respect for human rights in the digital sphere.
• Analysis of the situation and its consequences in chapter 7 and related
annexed Factsheet 7.
o Provision of recommendations in chapter 7.
6 Users find it difficult to benefit from digitalisation, owing to insufficient or non-

existent Internet access.
• Analysis of situation in terms of access in chapter 6 and related
annexed Factsheet 5.
o Provision of recommendations in chapter 6.
27
3. European institutional framework and trends in sovereign

digitalisation
Digital sovereignty is a key enabler of a fairer, more inclusive and democratic digitalisation of
Europe.
Depending on the context, the term “digital sovereignty” has been used with different meanings:
both authoritarian and democratic states and institutions have used the term. It is often used by
governments 111, 112, 113 to convey the idea that states should reassert their authority over the Internet
and protect their citizens and businesses from the manifold challenges in the digital sphere 114.
Digital sovereignty as a whole refers to the ability to have control over one’s own digital destiny:
the data, content, hardware and software that you rely on and create 115. The authors will
consider the public and their individual and societal sovereignty as part of the definition, in order to
improve democracy so that is less tutored 116 and more advanced.
Digital sovereignty claims can be systematised by distinguishing whether they address the capacity
for digital self-determination by states, private entities or individuals 117.
Digital sovereignty from the EU and states perspective

As the central scope of this report is the notion of European Digital Sovereignty from a
human-rights perspective, only a brief overview will be dedicated to the states perspective. In the
EU, from a state-centred perspective, digital sovereignty at first, grosso modo, took an economic
approach and then shifted, so as not to contradict the free market narrative, to add a security 118, 119
perspective and then a more human-centred perspective.
Compared with the US or China, the EU has less data capacity. It becomes clear that this is an
important limitation with respect to competing in the fourth industrial revolution, training data for
Artificial Intelligence (AI), and crafting the rules for that training.
111
Timmers, P., Moerel, L. (2021, January). Reflections on Digital Sovereignty. EU Cyber Direct. Retrieved August 26, 2021,
from https://eucyberdirect.eu/research/reflections-on-digital-sovereignty.
112
Ministry of Foreign Affairs of the People’s Republic of China. (2015, December 16). Remarks by H.E. Xi Jinping President
of the People's Republic of China At the Opening Ceremony of the Second World Internet Conference. Retrieved
August 26, 2021, from https://www.fmprc.gov.cn/mfa_eng/wjdt_665385/zyjh_665391/t1327570.shtml.
113
The Shanghai Cooperation Organisation. (2014). Dushanbe Declaration. Retrieved August 26, 2021, from
http://eng.sectsco.org/load/199902/, para. 5.
114
Pohle, J. & Thiel, T. (2020). Digital sovereignty. Internet Policy Review, Vol. 9, Issue 4. https://doi.org/
10.14763/2020.4.1532. Retrieved August 26, 2021, from https://policyreview.info/concepts/digital-sovereignty.
115
Fleming, S. (2021, March 15). What is digital sovereignty and why is Europe so interested in it?. Retrieved August 26,
2021, from Fleming, S. 2021 - https://www.weforum.org/agenda/2021/03/europe-digital-sovereignty/.
116
See chapter 1.
117
Pohle, J. & Thiel, T. (2020). Digital sovereignty. Internet Policy Review, Vol. 9, Issue 4.
https://doi.org/10.14763/2020.4.1532. Retrieved August 26, 2021, from https://policyreview.info/concepts/digital-
sovereignty.
118
Paris Call for Trust and Security in Cyberspace’ (2018). UNESCO Internet Governance Forum (IGF). Retrieved September
26, 2021, from https://pariscall.international/en/. This Call aims to emphasize the need for an “open, secure, stable,
accessible and peaceful cyberspace” which affects the everyday life of citizens and public/private actors (Paris Call
Declaration).
119
European Commission (n.d.). An open, sustainable and assertive trade policy – Open strategic Autonomy. Retrieved
August 26, 2021, from https://trade.ec.europa.eu/doclib/docs/2021/february/tradoc_159434.pdf.
28
Recently, digital sovereignty is constantly being mentioned in European digital policies addressing
the next 20 years. The rush to digital sovereignty can be interpreted as the joint European effort to
catch up with other global players who have been more successful in exploiting the economic
opportunities of the digital transformation 120, although this happens in some cases to the detriment
of fundamental human rights.
See more details in the annexed Factsheet 1: Brief chronological overview on the concept of
digital sovereignty in EU institutions.
Digital sovereignty from the citizens' perspective

As highlighted in the introduction, while explaining the potential of digital for the
fulfilment of the very concept of democracy, digital sovereignty can’t be limited to
geopolitical or institutional sovereignty, but should be interpreted as the sovereignty
of the citizens, individually and collectively, as societies embracing the exercise of
fundamental rights, along with, but not limited to, consumers’ rights.
Thus, to guarantee digital sovereignty —of infrastructures, data and content—, the working
definition that will be used also includes democratic safeguards such as the privacy and
sovereignty of personal data, for individuals and collectives. As such, this includes the right to
informational self-determination and to the inviolability of communications. Such safeguards
require the distributed traceability of sources and decision-making processes, the
transparency of institutions, open-standards and interoperability, portability of data and a
distributed auditability of institutions' protocols and infrastructures.
In the EU, the core protection for privacy and sovereignty of personal data relies on the
aforementioned General Data Protection Regulation (GDPR) and its vocation to correct abuses such
as mass surveillance, while highlighting a clear distinction between people’s privacy and the
transparency that institutions owe. It is a piece of legislation that sets the standard 121 internationally.
The sovereignty of individuals’ personal data is often present in the background in official EU
documents and initiatives, delegating to the General Data Protection Regulation (GDPR), while
sometimes contradicting it. From the perspective of citizens' digital sovereignty and democratic
digitalisation, the principles of the GDPR (such as privacy understood as a right that must exist by
default in the design of infrastructure, protocols and policies and that underpins the principles of
data minimisation and purpose limitation) should constantly and unambiguously emanate in the
design of the digitalisation of Europe.
120
See examples in page 2: Madiega, T. (2020). Digital sovereignty for Europe (PE 651.992). European Parliamentary
Research Service. Retrieved August 26, 2021, from https://www.europarl.europa.eu/RegData/etudes/
BRIE/2020/651992/EPRS_BRI(2020)651992_EN.pdf.
121
GDPR explained. Retrieved August 26, 2021, from https://www.gdprexplained.eu/.
29
Brief critical analysis of key infrastructure trends concerning

EU digital sovereignty
See more details in the annexed Factsheet 2: Annotations to the current main EU infrastructure
strategies concerning digital sovereignty.
This chapter refers to the conclusions of the analysis of the key projects in infrastructures considered
enablers of digital sovereignty by the EU analysed in the annexed Factsheet 2 on the current main
EU infrastructure strategies concerning digital sovereignty.
On this subject, it should be kept in mind that investment, both public and private, in digitalisation
is 10 times higher in the US and China than it is in Europe 122. Much of this investment is the result of
reinvestment from the exploitation of data.
Figure 7: Digital capabilities scorecard
Source: Amiot, E., Palencia, I., Baena, A., & de Pommerol, C. (2020). European Digital Sovereignty.
Syncing values and value. Oliver Wyman. Retrieved August 26, 2021, from
https://www.oliverwyman.com/content/dam/oliver-wyman/v2/publications/2020/october/
European%20Digital%20Sovereignty.pdf
122
Amiot, E., Palencia, I., Baena, A., & de Pommerol, C. (2020). European Digital Sovereignty. Syncing values and value. Oliver
Wyman. Retrieved August 26, 2021, from https://www.oliverwyman.com/content/dam/oliver-wyman/v2/
publications/2020/october/European%20Digital%20Sovereignty.pdf.
30
While discussing solutions to solve these lacks, in the debate on the requirements for digital
infrastructure in the EU some approaches imply that full digital sovereignty requires Internet
infrastructures to be geographically located in Europe and owned by European stakeholders, while
others consider it enough that digital infrastructures are governed in accordance with EU law,
regardless of their ownership and geographical location.
It has to be considered that Europe’s weak digital sovereignty puts it at a disadvantage in terms of
the growth of investment in digitalisation, but it also raises the problem that digital human rights
protection may not always be fully considered in either of the two options .
In this regard, in analysing the trends in EU infrastructure, two deficits can be identified:
On the one hand, many infrastructure proposals could be more deeply rooted in
the human rights perspective and include mechanisms to ensure the transparency
and explainability 123 of systems for end users, and to provide agency 124 to citizens.
On the other hand, most of the already-existing infrastructures are not considered
in planning and are taken for granted. The authors of this report suggest a
reformulation of this approach.
As outlined in chapter 2 and Action/Prototype 1, the most basic tools/infrastructure needed by the
population to integrate into the digital era (see Table 1) currently could imply deficits regarding
human rights. A holistic strategy 125 for a democratic EU digital transformation should include the
correction of those deficits with regard to infrastructure.
This report will further analyse and suggest prototypes to include infrastructures as basic as those
used every day by societies to generate content and data (as shown in Action/Prototype1 DD), for
interpersonal communication (as will be shown in Action/Prototype2) and to browse in the digital
sphere (as will be shown in Action/Prototype3). The Internet is the digital public space. A dystopian
reality in which all public and private spaces belong to just a few corporations as massive shopping
malls is not an impossible scenario. The question is whether this is a desirable scenario.
Before looking into these matters, it would be interesting to analyse, as an example of current
trends, possibilities and risks, a crucial infrastructure essential for the everyday digital life of society
that, on the contrary, is being taken deeply into consideration in EU strategy: the cloud.
123
Technical term mostly used in the Artificial Intelligence (AI) context meaning that the results provided should be
understood by humans. It contrasts with the concept of the "black box" in machine learning where even its designers
cannot explain why an AI arrived at a specific decision. See: https://en.wikipedia.org/wiki/
Explainable_artificial_intelligence.
124
When it comes to technology and citizens, the term “agency” is used to refers to self-determination and freedom of
action. See: Nicole David, N., Newen, A., Vogeley, K. (2008). The “sense of agency” and its underlying cognitive and
neural mechanisms. Consciousness and Cognition, Volume 17, Issue 2. Pages 523-534. ISSN 1053-8100. Retrieved
August 26, 2021, from https://www.sciencedirect.com/science/article/abs/pii/S1053810008000354.
125
An interesting proposal is also described by Electronic Frontier Foundation (EFF): it brings together under the term
‘public interest Internet’ a wide range of initiatives that embrace the general vision of technology serving the general
interest and the common good: https://www.eff.org/issues/public-interest-Internet.
31
Table 1: Internet-based services and socioeconomic implications for the individual
Sources: Mildebrath, H., (2021, July 15). Internet access as a fundamental right: Exploring aspects of
connectivity. European Parliamentary Research Service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696
170, page 3. And, European Commission (2016). Review of the scope of universal service, SMART
2014/0011, p. 50. Retrieved August 26, 2021, from https://op.europa.eu/en/publication-detail/-
/publication/6eee3cb7-9adf-11e6-868c-01aa75ed71a1/language-en
32
Some 80–95% of Europeans’ data are stored in non-European companies' clouds 126. This affects not
only sovereignty, but also the possibility to innovate and research with data.
Figure 8: Data on European Digital Sovereignty
Source: Amiot, E., Palencia, I., Baena, A., & de Pommerol, C. (2020). European Digital Sovereignty.
Syncing values and value. Oliver Wyman. Retrieved August 26, 2021, from
https://www.oliverwyman.com/content/dam/oliver-
wyman/v2/publications/2020/october/European%20Digital%20Sovereignty.pdf
It is not a major discovery to state that much of the data of Europeans —the public, companies and
institutions— are not held and managed by Europeans. Simply put, the EU does not enjoy data
sovereignty. Futhermore, this is the result of an involutional process which, due, among other
reasons, to untackled failures of the market (which will be detailed further on in this report) 127, has
been sweeping across the SMEs that, for example, provide email services.
126
Amiot, E., Palencia, I., Baena, A., & de Pommerol, C. (2020). European Digital Sovereignty. Syncing values and value. Page
11. Oliver Wyman. Retrieved August 26, 2021, from https://www.oliverwyman.com/content/dam/oliver-
wyman/v2/publications/2020/october/European%20Digital%20Sovereignty.pdf.
127
See chapter 7.
33
In response to this situation, long decried by some civil society organisations128, the EU is starting to
take measures.
Figure 9: There is no cloud, just other people's computers (2016)
Source: Free Sofware Foundation Europe. (n.d.). Retrieved August 26, 2021, from
https://commons.wikimedia.org/wiki/File:FSFE_There_is_no_cloud_postcard_en.svg and
https://fsfe.org/contribute/spreadtheword.html - See also earlier opinions in Woods, S. (2015,
January 14). New FSFE stickers explain cloud computing, simply. Retrieved August 26, 2021, from
http://www.bristolwireless.net/blog/2015/01/14/new-fsfe-stickers-explain-cloud-computing-simply/.
In this regard, the main project that the EU is backing is Gaia-X 129, a private initiative started among
French and German industrial companies which is now international, with hundreds of members.
Gaia-X presents itself as a consortium to federate clouds using portability and interoperability
protocols that are both auditable and transparent for sovereignty 130, promoting the reuse of
European data in compliance with the principle of freedom to conduct business and the right to
privacy and other fundamental rights.
However, from the perspective of democratic digitalisation, a number of issues still need to be
resolved in the model currently proposed by Gaia-X, bearing in mind it is a project still under
construction. Those issues could be summarised as follows:
Governance model, weight and balance in the project partners and representation of
the general interest rather than only commercial interest: this private federation will
have to manage powerful private interests. It is not clear that all the necessary limits are
in place to protect human rights and European values, to avoid unsuitable data
extraction models, replicating the problem of lack of sovereignty and dominance with
an ad-hoc framework to normalise the current situation.
128
Woods, S. (2015, January 14). New FSFE stickers explain cloud computing, simply. Retrieved August 26, 2021, from
http://www.bristolwireless.net/blog/2015/01/14/new-fsfe-stickers-explain-cloud-computing-simply/.
129
See annexed Factsheet 2. Annotations to the current main EU infrastructure strategies concerning digital sovereignty.
130
Massé, E. (2021, January 28). The future of data protection: what we expect in 2021. Access Now.
https://www.accessnow.org/the-future-of-data-protection-what-we-expect-in-2021.
34
Openess of the code, ownership and distributed auditability: It is difficult to see how
the business models of some of the members can be reconciled with the open nature
of the code. Members include Amazon, based in Luxembourg; Google, based in Ireland;
Huawei, based in Germany; IBM, based in Belgium, and others such as Palantir
Technologies Inc. from the United States.
For a more comprehensive analysis on Gaia-X, see the annexed Factsheet 2: annotations to
the current main EU infrastructure strategies concerning digital sovereignty.
Brief critical analysis of key regulations, institutional strategies

and policies concerning EU digital sovereignty
From the regulatory perspective, we will consider digital sovereignty in itself, but also as an item
comprising, among others:
Sovereignty of infrastructures and access to them;
Right to data privacy;
Inviolability of communications;
Right to informational self-determination.
As such, it has also to consider, among others:
Institutional structure and infrastructure transparency and distributed auditability;
Freedom of data portability and interoperability. 131
With regard to security 132, only digital security regarding to data-protection aspects among others
will be addressed, adopting the definition of Digital Security provided by the Organization for
Economic Cooperation and Development (OECD) 133 that considers digital security the economic
and social aspects of cybersecurity, as opposed to the purely technical aspects and those related to
criminal law enforcement or national and international security. This report attempts to rebalance
the fact that the strong focus on security aspects in some cases takes precedence over human rights
and the protocol for a form of digitalisation that is secure but also democratic. The fact that the
decentralisation of a network is one of the ways to guarantee its security should also be considered.
What it is increasingly happening instead, however, is a centralisation of data flow. A beneficial
harmonisation of cooperation should not consist of recentralisation and monopolies 134, 135, 136.
131
More broadly other rights are also involved such as free speech or effective judicial protection, but are considerate
out of scope of the present report.
132
Schneier, B. (2019, August). We Have Root. Even more advice from Schneier on security. Wiley. ISBN (Paperback): 978-
1-119-64301-2. ISBN (Ebook): 978-1-119-64312-8. Retrieved October 13, 2021 from
https://www.schneier.com/books/root/.
133
OECD. (n.d.). Why “digital security” instead of “cybersecurity”? Digital security. Retrieved October 13, 2021 from
https://www.oecd.org/digital/ieconomy/digital-security/.
134
Chima, R. J. S., & O’Brien, L. (2021, March 10). At U.N. meeting, Access Now stresses cybersecurity must center and protect
civil society. Access Now. Retrieved August 26, 2021, from https://www.accessnow.org/oewg-cybersecurity-meeting/
135
O’Brien, D. (2020, October 6). Orders from the Top: The EU’s Timetable for Dismantling End-to-End Encryption. Electronic
Frontier Foundation. Retrieved August 26, 2021, from https://www.eff.org/deeplinks/2020/10/orders-top-eus-
timetable-dismantling-end-end-encryption.
136
European Digital Rights (EDRi). (2021, June). Civil society warn against rushed global treaty for intrusive cross-border
police powers. Retrieved August 26, 2021, from https://edri.org/our-work/civil-society-warn-against-rushed-global-
treaty-for-intrusive-cross-border-police-powers/.
35
On the other hand, a recent study 137 and the European Ombudsman 138 has just found that ‘tech’ is
the biggest lobby sector in the EU in terms of spending. On the subject of EU digital regulation,
Commission officials held a total of 271 meetings, 75 percent of them with industry lobbyists.
Figure 10: Imbalanced number of meetings with the EU-Commission on the DSA/DMA
Source: Bank, M., Duffy, F., Leyendecker, V., Silva, M. (2021, August 31). The lobby network: Big tech’s
web of influence in the EU. Corporate Europe Observatory and LobbyControl e.V. Retrieved September
1st, 2021, from https://corporateeurope.org/sites/default/files/2021-
08/The%20lobby%20network%20-
%20Big%20Tech%27s%20web%20of%20influence%20in%20the%20EU.pdf, page 18.
To compensate for this imbalance, the analyses of the current regulatory situation of digital
sovereignty aim to reflect aspects related to the safeguard of human rights and democracy
highlighted by organised civil society that have been, or might be, left out of the regulatory
framework or EU strategies.
137
Bank, M., Duffy, F., Leyendecker, V., Silva, M. (2021, August 31). The lobby network: Big tech’s web of influence in the
EU. Corporate Europe Observatory and LobbyControl e.V. Retrieved September 1st, 2021, from
https://corporateeurope.org/sites/default/files/2021-
08/The%20lobby%20network%20-%20Big%20Tech%27s%20web%20of%20influence%20in%20the%20EU.pdf.
138
European Ombudsman. (2021, September 17). Ethical lobbying in a post-COVID world. [Speech]. Global Public Affairs
Forum, Paris. Retrieved September 26, 2021, from https://www.ombudsman.europa.eu/en/speech/en/146894.
36
For a more comprehensive analysis, see the annexed Factsheet 3: Annotations to key EU
regulations and institutional strategies and policies concerning digital sovereignty.
It includes an analysis of:
The right to self-determination
Electronic IDentification, Authentication and trust Services Regulation (eIDAS) 139
The European Self-Sovereign Identity Framework (ESSIF) 140.
Data protection and privacy
General Data Protection Regulation (GDPR) 141
E-privacy Directive 142 (soon to be replaced by the e-privacy Regulation 143)
Opening up the flow of data for the general interest and entrepreneurship
Open Data Directive 144
European Strategy for Data 145
Data Governance Act 146
Digital services and environment
139
Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic
identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.
2014.257.01.0073.01.ENG.
140
Doerk, A. (SSI Ambassador). (2020, February 2). ESSIF: The European self-sovereign identity framework. Retrieved August
26, 2021, from https://ssi-ambassador.medium.com/essif-the-european-self-sovereign-identity-framework-
4572f6875e12.
141
lex.europa.eu/eli/reg/2016/679/oj.
142
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the electronic communications sector (Directive on privacy and
electronic communications). Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A02002L0058-20091219.
143
European Commission. (2021a). ePrivacy Regulation. Shaping Europe’s Digital Future. Retrieved August 26, 2021, from
https://digital-strategy.ec.europa.eu/en/policies/eprivacy-regulation.
144
Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use
of public sector information. Retrieved August 26, 2021, from https://eur-lex.europa.eu/eli/dir/2019/1024/oj.
145
European Commission. (n.d.-a). A European Strategy for Data. Shaping Europe’s Digital Future. Retrieved August 26,
2021, from https://digital-strategy.ec.europa.eu/en/policies/strategy-data.
146
European Commission. (2020, November 25). Proposal for a Regulation of the European Parliament and of the Council
on European data governance (Data Governance Act). Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020PC0767.
37
Digital Services Act Package 147 (comprising the Digital Services Act (DSA) 148 and the
Digital Market Act (DMA) 149 proposals)
Digital Compass 150
European Approach to Artificial Intelligence 151
European Interoperability Framework (EIF) 152
A more detailed overview of the following items will be offered in chapters 6 and 4:
Right to access the Internet
Right to inviolability of communications.
In summary 153:
On the right to self-determination, efforts are being made by the EC to improve
mutual recognition across countries to guarantee Self-Sovereign Identity (SSI),
allowing users to create and control their own identity across borders without
relying on centralised authorities.
On data protection and privacy, the GDPR is a legislative success and set out a
good path, but, in several respects, it has been considered an enforcement failure
up untill now due to the low level of implementation in some Member States and
in how DPAs utilise their power, resulting in many citizens’ complaints going
unaddressed.
As for the upcoming e-privacy regulation to update the legislation in aspects that
are significant for this report such as the right of inviolability of communication,
digital rights defenders are concerned by moves to lower the level of protection
already guaranteed under the GDPR, for example regarding tracking of the
location of terminal equipment.
Complementary to that, an Open Data Directive has entered into force to
regulate the re-use of public sector data and introduces the concept of ‘high-value
datasets’ for greater availability of data to society. The European Strategy for Data
147
European Commission. (n.d.-c). The Digital Services Act package. Shaping Europe’s Digital Future. Retrieved August 26,
2021, from https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package.
148
European Commission. (2020, December 15). Proposal for a Regulation of the European Parliament and of the Council
on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC. Retrieved August
26, 2021, from https://eur-lex.europa.eu/legal-content/en/TXT/?qid=1608117147218&uri=
COM%3A2020%3A825%3AFIN.
149
on contestable and fair markets in the digital sector (Digital Markets Act). Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/en/TXT/?qid=1608116887159&uri=COM%3A2020%3A842%3AFIN.
150
European Commission. (2021, March). 2030 Digital Compass. The European way for the Digital Decade. Retrieved August
26, 2021, from https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=75375.
151
European Commission. (n.d.-b). A European approach to artificial intelligence. Shaping Europe’s Digital Future.
Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/european-approach-artificial-
intelligence.
152
European Commission. (2017, March 23). Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions on the European
Interoperability Framework –Implementation Strategy. Retrieved August 26, 2021, from https://eur-
lex.europa.eu/resource.html?uri=cellar:2c2f2554-0faf-11e7-8a35-01aa75ed71a1.0017.02/DOC_1&format=PDF.
153
See details on the analysis in the annexed Factsheet 3: Annotations to key EU regulations and institutional strategies
and policies concerning digital sovereignty.
38
aims to regulate data sharing, access and use to provide a cross-sectoral

governance framework and to empower individuals to control their data, but the
safeguards in this regard and the Member States’ interpretation can still be very
restrictive.
Concerning digital services, the new Digital Services Act package still in progress
will be crucial for the future of the Internet. This package aims to offer a necessary
update of the European legal framework, but concerns have been raised around
some dangerous elements and trends in relation to rights and freedoms, which
may have serious consequences for the future, in particular relating to core tenets
that made the Internet free, free speech and inviolability of communications.
These worrying aspects include, among others: the requirements of fast removal
of content without judicial ruling will force the introduction of upload filters
(algorithmic tools to prevent the publication of ‘illegal content’); private platforms
may retain much room to decide on the illegality of content and to monitor (and
censor) content while some authors like Xnet specifically ask to shift the focus from
rules that could reduce free speech to the obligation of verification and
responsibility for institutions, political parties and businesses around content and
not to grant undue privileges; similarly, transparency and accountability of
algorithms, advertising and recommender systems (commercial and political) and
data-extractive business models are not yet exclusively opt-in with a consistent
policy on consent without leaving individuals with difficulties to fully exert their
rights due to the use of dark patterns; an explicit affirmation of users’ informational
self-determination right by increasing their control over the information they
share and access and choice of services is needed, as is the ban on intrusive
monitoring of user communications; the burden of protections could be solely on
individual users, while the default option should be not to track users by binding
Do-Not-Track signals and forbid ‘dark patterns’ to obtain users' consent; finally,
many provisions could also impact the possibility for SMEs to innovate and
manage ICT since it creates barriers that only big players can afford to put in place
causing an even greater increase of monopolies. Interesting improvements are
made to guarantee interoperability.
The European Approach to Trustworthy Artificial Intelligence represents
significant progress as it aims to prohibit unacceptable applications of AI, however,
exceptions would need to be limited in order to protect fundamental rights and
improve algorithmic transparency and reliability.
With the European Interoperability Framework, the EU continues to improve
digital public services, but not all the Member States comply with the framework,
which causes asymmetries across borders. Interoperability and data portability are
a crucial building block for digital sovereignty and to avoid monopolies, and could
contribute to enable the use of data for the general interest.
39
Summary - State of the art of EU digital sovereignty and draft

for a wider perspective
Summary - State of the art of EU digital sovereignty and draft for a wider perspective
Between 80% and 95% of European data and cloud computing is happening in non-European
clouds. The data about Europeans —citizens, businesses and institutions— are for the most part
not held and managed by Europeans. In short, the EU has a very low level of digital sovereignty.
In response to this situation, the EU is starting to act.
The authors consider the public and their individual and collective sovereignty as part of the
definition, in order to move towards a form of democracy that is less tutored and more
advanced. In fact, digital sovereignty as a whole refers to the ability to have control over your
own digital destiny —the data, hardware and software that you rely on and create— and this
should be applied not just to states, but to individuals and society in general.
Thus, to guarantee digital sovereignty – of infrastructure, data and content –, the working
definition used in this report and the legislation considered also include democratic safeguards
such as the privacy and sovereignty of personal data, for individuals and society. This will
also include the right to informational self-determination and inviolability of
communications. Such safeguards require the traceability of sources and institutional
decision-making processes, the transparency of institutions, interoperability, portability
of personal data and content and distributed auditability of institutions’ protocols and
infrastructures.
Having taken a global overview of the set of infrastructure initiatives promoted in the EU 154, the
authors found that in general the most basic tools needed by the population to integrate into
the digital transformation seem to be taken for granted in most of the EU strategies for a
democratic European digital transition or raise concern relating to distributed auditability, the
governance model, weight and balance and in the project partners and the general interest
being represented along with commercial interests.
In general as detailed in Action/Prototype 1 regarding basic everyday infrastructures to
generate and store content and data (Action/Prototype 1, DD), other essential
infrastructures, which will be covered in the following chapters, used in everyday life for
interpersonal communication (Action/Prototype 2) and to browse (Action/Prototype 3),
need to be taken into full consideration in the strategy for digital transition to ensure that it
is developed with fundamental freedoms at its core, by design and by default, as many of
the values that the regulation aims to protect are not guaranteed in the very design of the
current structures.
154
See annexed Factsheet 2: Annotations to the current main EU infrastructure strategies concerning digital sovereignty.
40
PART 2 – ESSENTIAL DIGITALISATION INFRASTRUCTURES OF

EVERYDAY LIFE NOT INCLUDED IN THE EU STRATEGIES
41
42
4. A system for interpersonal communication, nowadays

known as ‘email’
Asserting the right to inviolability of communications as a lever for transformation
towards democratic digitalisation.
‘Email’ as a gateway to digitalisation

It was estimated that in 2019, 3.9 billion individuals used email services, of which, according to
Google, around 1.5 billion were active Gmail (the email service provided by Google since 2004)
users 155.
With no clear data after 2013–2014, a further 400 million Microsoft email users (Hotmail or Outlook),
the previous most-used email 156, could be added.
In terms of sovereignty, one should also bear in mind that email is increasingly used as a form of
digital identification. This means that at present, the digital identity of many European citizens
depends on US email addresses of the form xxx@xxx.com 157. The importance given to email and its
function as a substitute identifier for many overly complex identification systems aggravates the
lack of digital sovereignty 158, 159.
The above-mentioned actors are dominant players in the email market that have penetrated it
by offering an email service free of charge despite the fact that it is a service that has high
costs due to issues such as space and spam management.
Free provision of these services by for-profit companies is problematic in a market that wants to be
competitive and democratic 160. The result is a dominant-player situation 161, a private monopoly de
facto, in an essential infrastructure such as that for interpersonal communication 162.
On the other hand, these services are currently configured by design as centralised services owned
or operated by private companies, which raises a number of issues related to sovereignty, privacy
155
Bhatt, M. (2019, May 29). How many Gmail user accounts are there in the world? Retrieved August 26, 2021, from
https://blog.gsmart.in/how-many-gmail-account-users-in-the-world/; Gmail. (2018, October 26). “1.5 billion users and
counting. Thank you” [Tweet]. Retrieved August 26, 2021, from https://twitter.com/
gmail/status/1055806807174725633; Elias, J., Petrova, M. (2019, October 21). Google’s rocky path to email
domination. CNBC. Retrieved August 26, 2021, from https://www.cnbc.com/2019/10/26/gmail-dominates-consumer-
email-with-1point5-billion-users.html; The Radicati Group, INC. (n.d.). Email Statistics Report, 2019-2023. Retrieved
August 26, 2021, from https://www.radicati.com/wp/wp-content/uploads/2018/12/Email-Statistics-Report-2019-
2023-Executive-Summary.pdf.
156
Outlook.com. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Outlook.com.
157
Amiot, E., Palencia, I., Baena, A., & de Pommerol, C. (2020). European Digital Sovereignty. Syncing values and value.
Page 9. Oliver Wyman. Retrieved August 26, 2021, from https://www.oliverwyman.com/content/dam/oliver-
wyman/v2/publications/2020/october/European%20Digital%20Sovereignty.pdf.
158
Xnet. (2021, July 14). Las políticas públicas de identificación digital abstraídas de la realidad. Retrieved August 26, 2021,
from https://xnet-x.net/politicas-publicas-identificacion-digital-abstraidas-realidad/.
159
Privacy International. (2020, November 11). A Guide to Litigating Identity Systems: The Right to Privacy and National
Identity Systems. Retrieved August 26, 2021, from https://www.privacyinternational.org/report/4162/guide-litigating-
identity-systems-right-privacy-and-national-identity-systems.
160
See chapter 7.3.
161
“Dominance and monopoly” in Competition law (n.d.). Retrieved August 26, 2021, from
https://en.wikipedia.org/wiki/Competition_law#Dominance_and_monopoly. See Chapter 7.
162
For the definition of essential infrastructure, see annexed Factsheet 5.
43
(in particular the right to secrecy of correspondence – now referred to as the right to confidentiality,
secrecy of communications or inviolability of communications 163, 164) and sustainability.
The ancient right to secrecy of correspondence is a legal principle enshrined in the constitutions of
a number of European countries. When referring to a sealed letter, it guarantees that the contents
will never be disclosed and that the letter will not be opened by government officials or any other
third party, while in transit to the final addressee. This is said to be ‘vicarious’ secrecy, because it is
protected irrespective of content. The principle has been extended in a natural way to other forms
of communication, including telephones and electronic communications on the Internet 165.
More detail on the current regulation can be found in Factsheet 4: Chronological timeline
of the right to secrecy of correspondence (inviolability of communications).
Email is the gateway to the ‘monoculture’ 166 of digital services. As spotted in the implementation of
the Action/Prototype 1 used as a case study of this report 167, email has been the first service to be
offered free of charge on a massive scale, even at the institutional level, to which other online
services (cloud, video call, text edition, calendar, everyday e-learning tools, etc.) are gradually
associated.
In Catalonia, to which administratively depend the schools where the case study was conducted,
the Government in 2010 first signed an agreement with Google to transfer all the emails of the
educational community to the free Gmail system, after which all the other GSuite services were
added, without any new agreement or caveats in force, and kept going even after the agreement
expired (the agreement came to an end in 2016168). There are approximately one million students in
public education alone in Catalonia. Just like in Catalonia – and many other parts of Europe –, 12 of
the 17 administrative regions of Spain have signed similar agreements. 169
163
EU Network of Independent Experts on Fundamental Rights. (2006, June). Commentary of the Charter of Fundamental
Rights of the European Union. Page 78. European Commission. Retrieved August 26, 2021, from
https://sites.uclouvain.be/cridho/documents/Download.Rep/NetworkCommentaryFinal.pdf.
164
See the evolution from the secrecy of correspondence till the right to inviolability of communication in annexed
Factsheet 4.
165
Secrecy of correspondence. Retrieved August 26, 2021 from: https://en.wikipedia.org/wiki/
Secrecy_of_correspondence- Martínez-Villalba, Juan Carlos Riofrío. «DERECOM. Derecho de la Comunicación. - El
derecho al secreto y la teoría del cono». Retrieved August 26, 2021, from:
http://www.derecom.com/secciones/articulos-de-fondo/item/83-el-derecho-al-secreto-y-la-teoria-del-cono- Riofrío
Martínez-Villalba, Juan C (2008). El derecho de los secretos. Editorial Temis. ISBN 978-958-35-0691-8. OCLC 426398515.
166
An area of farm land on which only one crop is grown. It is the opposite of "Polyculture" in which there is crop diversity
https://dictionary.cambridge.org/es/diccionario/ingles/monoculture.
167
See chapter 2.
168
Acuerdo de Google apps edición educación entre Google INC. Y el Centro de Telecomunicaciones y Tecnologías de
la Información de la Generalitat de Catalunya. (2010, June 1). Retrieved August 26, 2021, from
https://xnet.maadix.org/nextcloud/index.php/s/L4M3ABQzLgeaLgM.
169
Herranz, A. (2020, March 12). Así se reparten Microsoft y Google el negocio de la educación en España: 12 de 17
Comunidades Autónomas tienen acuerdos para usar gratis sus productos. Xataka. Retrieved August 26, 2021, from
https://www.xataka.com/pro/asi-se-reparten-microsoft-google-negocio-educacion-espana-12-17-comunidades-
autonomas-tienen-acuerdos-para-usar-gratis-sus-productos.
44
Table 2: Case study: Cloud and email services in Catalan schools, information society
statistics for academic year 2019-2020.
Source: Education Department. (2020, May 10). Cloud and email services in Catalan schools,
information society statistics for academic year 2019-2020. Indicators and Statistics Service. Generalitat
de Catalunya. Retrieved August 26, 2021 from:
https://educacio.gencat.cat/web/.content/home/departament/estadistiques/equipaments-usos-
tic/estadistica-equipaments-usos-tic/cursos-anteriors/2019-2020/nuvol-correu.xlsx
45
The overall situation can be summarised by the fact that the email service, a service of huge
importance that is sometimes even a vehicle for digital identification, is a service that brings
companies considerable complexity and responsibility compared to benefits. These minimal
benefits stand against the fact that some of the already dominant companies in the sector have
become so by offering (ostensibly) 170 free-of-charge services that are actually expensive to
provide, such as email. It is difficult to have diversity in a market affected by this situation.
In this context, it is important to analyse to what extent the right to inviolability of
communications, which is essential for democratic societies and should be ensured by design
and by default, can be left exposed to profit interest in an imbalanced market or whether it
would be preferable to ensure an institutional effort to redress the situation, aiming for a more
democratic infrastructure strategy.
In a way, history is repeating itself 171: in the 18th century, people began to demand the right to
secrecy of correspondence and, in order to guarantee that right, post offices were established as a
public mail service, and postmen and post boxes were created 172. In the same way, without a
sovereign ‘email’ infrastructure, digital sovereignty for the whole of society is not achieved. Despite
Edward Snowden’s revelations from 2013 onwards, the right of inviolability of communication has
taken a back seat in the mainstream debate on privacy.
This is why one of the Actions/Prototypes of this report suggests a sovereign solution to
‘email’ or, rather, to interpersonal communication in Europe.
As mentioned 173, democracy is improved when individuals manage their own rights, meaning
intermediaries that manage the right for the individual are not indispensable, both for economical
and practical efficiency and affirmation of robust rights. If one is to fully enjoy the right to private
interpersonal communication, the person should be able to do so by themselves, rather than having
to resort to an intermediary. Decentralisation and disintermediation allow correspondence that
does not depend on centralised intermediation. In other words, it allows each person to verify the
inviolability of their own communication without having to rely on the guardianship of an
intermediary. When the source code used is not open, this does not allow the public to verify
how secured this right is.
To discuss democratic digitalisation with people’s sovereignty and fundamental freedoms at its
centre by design and by default, the right to inviolability of communications should be strongly
affirmed. This is the scope of Action/Prototype 2.
170
In fact those services are monetised, but for many authors cannot be considered free. See chapter 7.3 on Risks to
competition of infrastructural commercial services "for free".
171
See annexed Factsheet 4: Chronological timeline of the right to secrecy of correspondence (inviolability of
communications).
172
Mail. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Mail.
173
See chapter 1.
46
Action / Prototype 2 - After-email: Infrastructure for

interpersonal communication that guarantees the inviolability of
communications by design and by default
Action/Prototype 2 - After-email: Infrastructure for interpersonal communication that

guarantees the inviolability of communications by design and by default
Key words
Decentralisation, personal sovereignty, distributed auditability, privacy, interoperability,
verifiability, sustainability, usability.
The first aspect to be considered is to reframe the common idea of email, as the @ identity which
allows us to contact one another, and the architecture of interpersonal communication systems
– even chat rooms – that commonly need a management centre that people involved in the
communication do not control. A system of interpersonal communication that respects, by
design and by default, the inviolability of communications in a networked, post-Snowden world
does not require entities that centralise our conversations.
Nowadays, all commonly used email and communication systems although apparently
collaborative and peer-to-peer, go through a central server, the server of the organisation
providing the service.
Although they apply an end-to-end encryption system, these systems are rarely auditable in a
distributed way, which means users rarely know how their correspondence is protected, how
their data and metadata are tracked and stored and whether backdoors exist, among other
things.
Encryption 174, 175, 176, 177 tools are seldom in the hands of users. But being able to encrypt a
message should be similar to inserting a letter in an envelope that cannot be opened.
174
In the digital age, encryption is what guarantees the inviolability of communications. “As of today, the only way for
citizens to counteract surveillance and prevent breach of privacy consists in guaranteeing uncorrupted end-to-end
encryption of content and transport channel in all their communications". Scientific Foresight (STOA) Unit. (2015,
January). Mass Surveillance. Part 1 - Risks, Opportunities and Mitigation Strategies (PE 527.409). European Parliamentary
STUD/2015/527409/EPRS_STU(2015)527409_REV1_EN.pdf.
175
“Encryption and anonymity, today’s leading vehicles for online security, provide individuals with a means to protect
their privacy, empowering them to browse, read, develop and share opinions and information without interference
and enabling journalists, civil society organisations, members of ethnic or religious groups, those persecuted because
of their sexual orientation or gender identity, activists, scholars, artists and others to exercise the rights to freedom of
opinion and expression." Kaye, D. (2015, May). Report of the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, David Kaye. Human Rights Council. Retrieved August 26, 2021, from
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A.HRC.29.32_AEV.doc.
176
Xnet. (2015, December 17). Sobre el Derecho a la Privacidad y a la Encriptación. Xnet - Internet, derechos y democracia
en la era digital. Retrieved August 26, 2021, from https://xnet-x.net/derecho-privacidad-encriptacion/.
177
Elkind, P., Gillum, J., Silverman, C. (2021, September 5). How Facebook Undermines Privacy Protections for Its 2 Billion
WhatsApp Users. ProPublica. Retrieved September 26, 2021, from https://www.propublica.org/article/how-facebook-
undermines-privacy-protections-for-its-2-billion-whatsapp-users.
47
Figure 11: Degree of sovereignty of users in instant messaging platforms
Source: Niboe (2021, January). Instant messaging platforms. Retrieved August 26, 2021 from
https://niboe.info/blog/whatsapp-compara-las-distintas-alternativas-de-mensajeria/
48
The ‘disintermediation’ enabled by the Internet allows for something essential to sovereignty,
inviolability and privacy of communications: the possibility of creating decentralised peer-to-
peer networks, namely networks where the nodes do not need centralised mediation in order
to communicate.
The aim is to carry out the following functions while preserving the privacy of communication,
both of content and of identities and data:
1 To be able to create a written or audio-visual message that can have attachments.
2 To be able to send it to one or more persons.
3 These people can receive it on their own server in real time.
4 The recipient should be able to read it whenever they want when they download it
on a viewing/listening device (computer, phone, etc.).
5 The recipient should be able to store, sort or dispose of it.
6 The users should be able to decide who can contact them and avoid spam or other
abuses.
7 The users should be able to respond and restart this chain of operations.
What is suggested here is not something new. The proposal wants to drive institutional
attention to the fact that a sovereign intercommunication is possible. The fact that it is not
widely implemented is a matter of institutional strategy. It could change for the sake of a
digitalisation planed with human right at the centre, more than a digitalisation simply
‘happening’.
Information on technicalities
It has to be clarified that the full comprehension of the technicalities is not a requirement to
use the system. But the system is open so that it can be checked in a distributed manner,
similar to driving a car without understanding the motor, but still having the possibility to
open the hood so that one can choose an expert who can fix it and maybe even learn how to
do it oneself.
• People may connect their own servers to the Internet in the same way that routers
can be connected to the Internet. A server 178 is a piece of computer that provides
functionality for other programs or devices, called ‘clients’ and it can run on different
media: personal computer, browser, external devices… The software proposed here
can have the usability of a plug-in or an executable application.
• Each user has her/his own cloud/hard drive to store received contents. It should be
emphasised that complicated architectures for protecting centralised external and
private networks would be greatly reduced by each person having the server and
messages storage ‘at home’ while having a range of different options for storage
space, from the hard disks of their own devices, to local external devices or space in
the cloud.
• People are directly connected to a network and are able to communicate with
anyone without intermediaries, peer-to-peer 179. The genuinely peer-to-peer concept
is suitable for a wide range of uses. In this case, the system makes it possible to
connect only the persons in the network involved in the communication.
• On top of that, blockchain technology 180 can be applied to this decentralised

structure for a privacy-friendly verification of users through their encryption keys, in
178
Server (computing). Retrieved August 26, 2021 from https://en.wikipedia.org/wiki/Server_(computing).
179
Peer-to-peer. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Peer-to-peer.
180
Blockchain. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Blockchain.
49
line with the SSI 181 standards promoted by W3C. On the other hand, to protect
privacy, default encryption can be applied at the point when content is designed.
• Elliptic-curve cryptography (ECC) 182 allows not only to encrypt, but also to generate
the elements enabling one to verify who has generated the content. This
identification method, which makes it possible to prove who you are without having
to give personal details, also uses homomorphic encryption 183 and zero-knowledge
testing, which serves as the basis for a reformulation of the EU’s Self-Sovereign
Identity (SSI) on which the EC is working 184, 185. This therefore allows not only the
verification but also the integrity of personal identity, the highest possible degree of
privacy, while disabling incentives for spam and scams, because the system can
verify whether the source is of interest to the recipient.
• By default, the whole configuration is opt-in by users, who decide and can verify the
identity of the sender of the emails.
• Auditable formats of all these protocols and open-source software allow for
transparency of operation and interoperability. Encryption protects the contents
that are private, while distributed auditability of the processes ensures the reliability
of the system.
• Inboxes and outboxes are managed only between communication participants.
• Gateways to make the new integrated system compatible with older email or
messaging systems are included.
Technically, the solution could consist of an executable server in a Rust Webassembly-type

language186, which can be implemented as a browser plug-in, but in this case security and
privacy would remain in the hands of third parties. It could also be implemented as an
executable application on a computer or using an external device such as Raspberry Pi187,
which are more secure, more sovereign solutions.
The resources that should be engaged are affordable if the institutions support these options
as a strategic decision for the future and FLOSS software can be made available to the
population at very low costs. In all these features, much remains to be done and some
potential options have been explored that include auditable, decentralised models such as
those proposed by Matrix,188 which has already been adopted, for example by the German
national health system 189 and partially by the French Government 190, and in which even local
management companies can play an important role. 191 This implementation of course
181
See annexed Factsheet 3: Annotations to key EU regulations and institutional strategies and policies
concerning digital sovereignty.
182
Elliptic-curve cryptography. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Elliptic-
curve_cryptography.
183
Homomorphic encryption. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Homomorphic_encryption.
184
European Commission. (2019, May). EIDAS supported Self-Sovereign Identity. Retrieved August 26, 2021, from
https://ec.europa.eu/futurium/en/system/files/ged/eidas_supported_ssi_may_2019_0.pdf.
185
Gobierno de España. (2021, June 3). La Comisión Europea propone una nueva identidad digital para toda Europa [Press
release]. Retrieved August 26, 2021, from
https://administracionelectronica.gob.es/pae_Home/en/pae_Actualidad/pae_Noticias/Anio2021/Junio/Noticia-
2021-06-03-La-Comision-Europea-propone-nueva-identidad-digital-Europa.html?idioma=es.
186
Webassembly. Retrieved August 26, 2021, from https://webassembly.org/.
187
Raspberry Pi. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Raspberry_Pi.
188
Matrix. An open network for secure, decentralized communication. Retrieved August 26, 2021, from https://matrix.org/.
189
Matrix. (2021, July 21). Germany’s national healthcare system adopts Matrix! Retrieved August 26, 2021, from
https://matrix.org/blog/2021/07/21/germanys-national-healthcare-system-adopts-matrix.
190
Volpicelli, G. M. (2021, June 14). How governments and spies text each other. WIRED UK. Retrieved August 26, 2021,
from https://www.wired.co.uk/article/matrix-encrypted-messaging-app-governments.
191
See chapter 7.
50
requires institutional strategic support so it does not amount to a token gesture. After that,
the resources that would need to be engaged are minimal, creating a whole new proximity
industry that would generate a large number of jobs and new projects based on source code
available to people and entrepreneurs.
Summary and policy recommendations - Infrastructures for

interpersonal communication and the right to inviolability of
communications
Summary and policy recommendations - Infrastructures for interpersonal communication
and the right to inviolability of communications
By considering interpersonal communication services an essential infrastructure of the digital
era, the definition is extended to email, chat communication and others.
In advocating democratic digitalisation with people’s sovereignty and fundamental freedoms at
its centre by design and by default, the right to inviolability of communications, implicit in
privacy rights, should also be explicitly defended.
In this regard, the architecture of most of the current infrastructures for interpersonal
communication, some of which have gained a foothold through problematic market practices,
is below the standards required of a democratic society in the digital era. There exists a private
dominant-player situation, a de facto monopoly affecting an essential infrastructure.
Networked decentralised disintermediated infrastructures 192 allow each person to verify the
inviolability of their own communication without having to rely on the guardianship of a
centralised intermediary, especially when, by not displaying the source code used, it does
not permit direct auditability of the parameter used to ensure the right.
Intercommunication in the digital era is an essential, massive everyday activity and should be
designed to guarantee the rights related to it, such as the inviolability of communication, by
design and by default. This is the reason for the Action/Prototype 2.
192
See chapter 1.
51
5. The browser - Firefox as a case study and an opportunity

Action / Prototype 3 - The modern browser, one of the
engineering feats of our time at the service of the general interest
Action/Prototype 3 – Firefox as a case study and an opportunity
Although the strategies for large investments described in the annexed Factsheet 2 such as 5G
connectivity and satellite broadband, supercomputers and quantum computers and
infrastructure or even the very urgent transition to IPv6 —begun in the mid-2000s and still very
incipient 193—, are necessary for Europe to spur digitalisation and compensate for lost time, it is
equally important to consolidate the digital transformation on healthy and democratic
foundations, accessible to the entire population, as appointed with Action/Prototype 1 on
virtual campus and generation and storage of contents and Action/Prototype 2 on interpersonal
communication.
Similarly, EU strategies could support the preservation of another essential everyday life
infrastructure, necessary for the entire population, which cannot be taken for granted: the tool
necessary to move in the digital sphere, without which one would literally be excluded from this
space —unless having sufficient technical knowledge—, namely browsers.
Since the dawn of the WWW, the browser has been one of the main tools with which users —
whether individual, institutions or companies— ‘inhabit’ the Internet.
Again, without a browser that is auditably respectful of human rights, the results of any other
effort to develop critical and key infrastructure will be very limited in scope since is an
infrastructure that relates to many of the others.
This is why the ‘browsers wars’ that have been taking place since the 1990s are wars for control
of the Internet.
Preserving a democratic browser should be one of the foundations for the EU's digital
transformation. This browser already exists. The EU can take on the historical responsibility for
its preservation.
The history of Mozilla Firefox is the history of the Internet. Firefox has had a positive impact on
the Internet’s health for years and it has ensured a democratic Web at its darkest moments, as
will be seen later on. The Firefox project is not going through its finest moment, however, and
this is affecting the whole Web. Guaranteeing the sustainability and independence of Firefox
would have a major impact on fair digitalisation.
A browser is a computer program for accessing the Web. The original browsers simply made it
possible to view a website’s text and some simple images, click on links and not much else
besides 194. Nowadays, not only can any modern browser play any type of multimedia content
and enable all sorts of online interactions, it can also support the most common communication
protocols, execute complex programs, play videogames and so on. Their importance and
complexity make modern browsers one of the great inventions of our times 195.
193
IPv6 . Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/IPv6.
194
Berners-Lee, T. (n.d.). A quick look at Erwise. W3C. Retrieved August 26, 2021, from https://www.w3.org/
History/19921103-hypertext/hypertext/Erwise/Review.html.
195
How browsers work. (n.d.). Retrieved August 26, 2021, from https://taligarsiel.com/Projects/howbrowserswork1.htm.
52
Historically, browsers have been built often via the modification of source code freely
released 196, not from scratch.
Figure 12: Timeline of web browsers creation
Source: Wikipedia. (n.d.) Browser wars. Retrieved August 26, 2021, from
https://en.wikipedia.org/wiki/Timeline_of_web_browsers
The birth of the World Wide Web (between 1989 and 1991) 197, in which Web pages could be
visited and linked from one terminal device to another openly, marked a turning point in the
history of the Internet. Likewise, the appearance of Mosaic 198, the first popular browser, in 1993
marked a turning point in the history of the Web. Millions of people started using the Internet
in the years that followed, kicking off the period of history in which we currently live 199.
196
For example, Netscape Navigator and Internet Explorer inherited code from Mosaic, in the case of IE via spyglass.
https://www.itprotoday.com/windows-78/microsoft-and-spyglass-kiss-and-make.
197
Berners-Lee, T. (1998, May 7). The World Wide Web: A very short personal history. W3C. Retrieved August 26, 2021, from
https://www.w3.org/People/Berners-Lee/ShortHistory.html.
198
National Center for Supercomputing Applications University of Illinois at Urbana-Champaign. (n.d.). NCSA MosaicTM.
NCSA Illinois. Retrieved August 26, 2021, from http://www.ncsa.illinois.edu/enabling/mosaic.
199
September that never ended. (n.d.). The Jargon File. Retrieved August 26, 2021, from
http://www.catb.org/jargon/html/S/September-that-never-ended.html.
53
Some chronology
Some of the creators of Mosaic founded Netscape Navigator 200 and its commercial success
started the ‘dotcom bubble’ 201. The growing of this stock market bubble of ‘Internet-based
businesses’ is what defined this period of Web history in the late 1990s.
Microsoft, the operating-system giant, which had not considered the Internet relevant for its
commercial objectives 202, changed course 203, deciding to create Internet Explorer to challenge
Netscape Navigator. After a long battle between the two companies, Microsoft won the first
‘browser war’, using strategies that have been described in court as abuses of the company’s
monopolistic position 204, 205.
The most significant result of Microsoft’s victory was an era of the Internet marked by
Microsoft’s monopoly, further accentuated by the disappearance of many projects with the
dotcom crash. Later on, the term ‘Microsoft monoculture’ would be coined in reference to the
lack of diversity and innovation produced in the Web during this period 206, in contrast to the
cultural dynamism of the previous period.
Seen from the present day, however, the most significant result of Netscape’s defeat was the
release of its source code. This led to the creation of the Mozilla project in 1998, later
consolidated as the Mozilla Foundation so as to "not be soldable" 207, 208. Mozilla Foundation is
an American non-profit organisation that "works to ensure that the Internet remains a public
resource that is open and accessible to us all" 209. It picked up the source code of Netscape and
launched Mozilla Firefox in 2004 210.
Many are the projects 211 that have been led by or involved Firefox, which have changed or
improved the Internet over these years, such as Let’s Encrypt encrypted connections to servers
200
Griffin, S. (n.d.). Marc Andreesen. Internet Pioneers. Retrieved August 26, 2021, from https://ibiblio.org/pioneers/
andreesen.html.
201
Peter, I. (n.d.). The dotcom bubble. History of the Internet - the Browser wars. NetHistory. Retrieved August 26, 2021, from
https://www.nethistory.info/History%20of%20the%20Internet/browserwars.html.
202
Townsend, T. (2016. July 1). What Bill Gates Got Wrong About the Internet in the 1990s. Inc. Retrieved August 26, 2021,
from https://www.inc.com/tess-townsend/what-bill-gates-got-wrong-about-the-Internet-in-the-1990s.html.
203
Usher. S. (2011, July 22). The Internet Tidal Wave. Letters of Note. Retrieved August 26, 2021, from
https://lettersofnote.com/2011/07/22/the-Internet-tidal-wave/.
204
The United States Department of Justice. (n.d.). U.S. v. Microsoft Corporation [Browser and Middleware]. Department of
Justice. Retrieved August 26, 2021, from https://www.justice.gov/atr/case/us-v-microsoft-corporation-browser-and-
middleware.
205
European Commission (n.d.). Web browser choice for European consumers. Competition. Retrieved August 26, 2021,
from https://web.archive.org/web/20210625051555/https://ec.europa.eu/competition/consumers/web_browsers
_choice_en.html.
206
Geer, D., Pfleeger, C.P., Schneier, B., Quarterman, J.S., Metzger, P., Bacae, R., Gutmann, P. (2003, September 24).
CyberInsecurity: The Cost of Monopoly. How the Dominance of Microsoft's Products Poses a Risk to Security. Schneier on
Security. Retrieved August 26, 2021, from https://www.schneier.com/essays/archives/2003/09/
cyberinsecurity_the.html.
207
“We are technically and legally a non-profit organization. That means that all of the value that we create is owned by
the public and cannot be distributed among or to private persons as you would with shareholders. And so that’s the
legal mechanism that re-enforces the Internet as public infrastructure.” Mozilla. (2014). Taliabale - History Of Mozilla
By Mitchell Baker. Amara Public. Retrieved September 26, 2021, from
https://amara.org/en/videos/MJx1Uuc6kvcT/info/taliabale-history-of-mozilla-by-mitchell-baker/.
208
Bhatt. K. (2008, November 16). Mozilla is organized to bulild an open Internet. Retrieved September 26, 2021, from
https://www.livemint.com/Industry/r0ql5wBWob8pXQd8l9aSmM/Mozilla-is-organized-to-build-an-open-
Internet.html.
209
Mozilla. (n.d.). Mozilla. Retrieved August 26, 2021, from https://foundation.mozilla.org/.
210
Hamerly, J., & Paquin, T., (1999, March 29). Freeing the Source. The Story of Mozilla. In Open-sources: Voices from the
Open-source Revolution. Retrieved August 26, 2021, from
https://www.oreilly.com/openbook/opensources/book/netrev.html.
211
Other Mozilla projects related: Rust, Web Assembly (Wasm), AV1, Opus, WebRTC, QUIC and HTTP/3, Servo, TLS 1.3,
DoH, Prio, Ad Analysis for Facebook, Regrets Reporter, Mozilla Location Service (MLS), MDN Web Docs, Rally, Pocket
54
throughout the Internet free of charge, making it a more secure place in record time, 212 or the
hundreds of millions of downloads of ad-blockers 213 that obliged advertisers to abandon some
of the worst practices of the previous period. Firefox pioneered a whole panoply of anti-spying
technology (cookie-blocking, private browsing, tracking protection, etc. 214), which would end
up becoming popular or even Web standards in the post-Snowden era. The Tor browser 215, a
crucial tool to protect the privacy of browsing and which in many authoritarian countries
saves lives and allows the right to the circulation of information and freedom of expression to
be preserved, even in extreme conditions 216, is based on Firefox source code. To a lesser extent
Firefox is also part of the starting point of Google Chrome 217 and later Chromium, the Chrome
core released open-source as a basis available for other developments.
Firefox was born from a conscious attempt to preserve an open and democratic Web 218, kicking
off a golden age in the history of the Internet known as Web 2.0 or the social Web. Control of the
Internet was in part taken back by users contributing to more and better content than the big
companies by creating collaborative production processes that proved to be more efficient, as
even Time magazine exposed. By choosing those users as the person/s of the year in 2006 219, it
stated: "(...)for seizing the reins of the global media, for founding and framing the new digital
democracy, for working for nothing and beating the pros at their own game (...) Silicon Valley
consultants call it Web 2.0, as if it were a new version of some old software. But it's really a
revolution" 220. The Internet of before the crash of dotcom bubble – open, free, innovative and
led by civil society initiatives, such as Wikipedia – was gaining ground. Firefox was an important
tool for that and enabled a neutral space that permitted those initiatives. It has had great
success.
Local Content Curation, Common Voice, Bergamot project, Web GL, WebVR, Mozilla Hubs, Firefox OS and Boot to
Gecko, Mozilla WebThings, Mozilla VPN, Firefox Monitor, Firefox Relay, Firefox Lockwise, Firefox Hello, Firefox Send.
212
Let’s Encrypt, Let’s Encrypt Stats. Retrieved August 26, 2021, from https://letsencrypt.org/stats/.
213
Statista Research Department. (2021, January 14). Ad blocking user penetration rate in the United States from 2014 to
2021. Retrieved August 26, 2021, from https://www.statista.com/statistics/804008/ad-blocking-reach-usage-us/.
214
Mozilla. (2015, November 23). Help Test Private Browsing with Tracking Protection in Firefox Beta. Future Releases.
Retrieved August 26, 2021, from https://blog.mozilla.org/futurereleases/2015/09/23/help-test-private-browsing-
with-tracking-protection-in-Firefox+-beta/.
215
Tor Project. (n.d.). Why Is Tor Browser Built from Firefox and Not Some Other Browser? Retrieved August 26, 2021, from
https://support.torproject.org/tbb/tbb-4/.
216
Paul Syversonm, Wikiwand. Retrieved August 26, 2021, from https://www.wikiwand.com/en/Paul_Syverson.
217
Google. (2008, September 1). A fresh take on the browser. Google Official Blog. Retrieved August 26, 2021, from
https://googleblog.blogspot.com/2008/09/fresh-take-on-browser.html.
218
El País. (2008, April 23). “Firefox llegó para salvar la web.” El País. Retrieved August 26, 2021, from
https://elpais.com/tecnologia/2008/04/23/actualidad/1208939278_850215.html.
219
See cover in TIME Magazine. (2006, December 25). Retrieved August 26, 2021, from
http://content.time.com/time/covers/0,16641,20061225,00.html.
220
Grossman, L. (2006, December 25). You — Yes, You — Are TIME's Person of the Year. TIME Magazine U.S. Retrieved
August 26, 2021, from https://web.archive.org/web/20120305133252/http://www.time.com/time/magazine/
article/0,9171,1570810,00.html.
55
Figure 13: Market share of each browser before, during and after the first browser war.
Source: Wikipedia. (n.d.) Browser wars. Retrieved August 26, 2021, from
https://en.wikipedia.org/wiki/Browser_wars#/media/File:Browser_Wars_(en).svg
The beginning of Firefox’s crisis can be traced back to 2010, when it began losing market share.
To find the causes, one needs to look years further back, when Google decided to stop being
just a search engine. As already explained, it started by taking over the email market, offering, as
just exposed in chapter 4 Gmail for free in 2004. Cleverly using its position as the most efficient
and used search engines 221, it entered the Web advertising business222 too. Once it had achieved
a prominent position, the next step was logical: a browser -> Chrome (2008). 223
Google is now one of the five Big Tech companies224.
Three months after launching Chrome 1.0, Google also partly released its source code with
Chromium. Even if some core features are not available, its dominant position, later increased
with the Android phones, makes appealing - or even necessary to avoid incompatibility - to
choose its code as the starting code from which to develop other projects 225.
221
Global Stats StatCounter. (n.d.). Search Engine Market Share Worldwide July 2020 – July 2021. Retrieved August 26, 2021,
from https://gs.statcounter.com/search-engine-market-share.
222
Nylen, L. (2020, April 6). ‘Google Dominates Online Ads —and DOJ May Be Ready to Pounce’, Politico. Retrieved August
26, 2021, from https://www.politico.com/news/2020/06/04/google-doj-ads-302576.
223
See figures in: u/DataCrayon. (2021, September). [OC] Desktop Browsers Market Share (1994-2021). Retrieved
September 30, 2021, from
https://www.reddit.com/r/dataisbeautiful/comments/pq0dux/oc_desktop_browsers_market_share_19942021/.
224
La Monica, P.R. (2020, February 11). ‘The S&P 500 Is Really the S&P 5. Big Tech Dominates the Index’, CNN. Retrieved
August 26, 2021, from https://www.cnn.com/2020/02/10/investing/sp-500-tech-stocks/index.html.
225
Opera software. (2013, February 13). Opera gears up at 300 million users. Retrieved August 26, 2021 from:
https://web.archive.org/web/20131023163618/http://www.operasoftware.com/press/releases/general/opera-
gears-up-at-300-million-users.
56
Firefox says it looks after the health of the Internet 226, but it seems that Firefox’s health is a good
reflection of the Web’s health.
This is not the finest moment for Firefox 227, which in 2020 had to announce 250 job losses 228.
From the information published by Mozilla itself, it can be calculated that some 88% 229 of its
revenue is generated by a Search Engine Default Partnership Agreement with Google 230, which
makes Google its main revenue 231. This trend increasing its dependency on Google 232 has just
been sealed with the signing of a three-year deal to sustain the current difficulties.
Currently Chrome accounts for roughly 70% of the market, followed by Microsoft's Edge with
approximately 9% both installed by default on the respective operating systems, which
represents the current duopoly of operating systems. Firefox now lags behind in third position
with around 7% 233.
It is not difficult to see why the by-default installation could be problematic and even more
problematic that Google is the main ‘partner’ in its non-profit FLOSS competitor, Firefox.
Moreover, for the larger business in online advertisements to be the owner of the main browser
is also bad news for the Web. This is one of the reasons why in recent years, after Web 2.0, the
Internet community entered again into a less innovative period. The online space is dominated
by a greater visibility for content related to market product and mainstream media 234.
Despite having lost market share, Firefox remains crucially influential from the perspective of
preserving Internet infrastructures centred on human rights. The problem is: how long can it
continue doing so?
From the perspective of democratic digitalisation, it is important to preserve the www
ecosystem – the equivalent of the public space in the digital space – such that it is not only a
space shaped and owned by dominant, private and for-profit interests. Other browsers not
related to the Big Tech companies exist and working from the privacy perspective exist235.
226
Mozilla. (2020). The Internet Health Report 2020. A Healthier Internet Is Possible. Retrieved August 26, 2021, from
https://2020.Internethealthreport.org/.
227
Mozilla. (2019). The State of Mozilla: 2019 Annual Report. Retrieved August 26, 2021, from https://www.mozilla.org/en-
US/foundation/annualreport/2019/.
228
Baker, M. (2020, August 11). Changing World, Changing Mozilla. Mozilla. Retrieved August 26, 2021, from
https://blog.mozilla.org/en/mozilla/changing-world-changing-mozilla/.
229
Mozilla Foundation and Subsidiaries. Independent Auditors’ Report and Consolidated Financial Statements. Retrieved
September 26, 2021, from https://assets.mozilla.net/annualreport/2019/mozilla-fdn-2019-short-form-0926.pdf.
230
Google has other Search Engine Default Partnership Agreements with other stakeholders, for example of $15 billion
with Apple. Miller, C. (2021, August 25). Analysts: Google to pay Apple $15 billion to remain default Safari search
engine in 2021. 9to5Mac. Retrieved August 26, 2021 from: https://9to5mac.com/2021/08/25/analysts-google-to-pay-
apple-15-billion-to-remain-default-safari-search-engine-in-2021/.
231
Quach, K. (2020, August 14). ‘Mozilla Signs Fresh Google Search Deal Worth Mega-Millions as 25% Staff Cut Hits Servo,
MDN, Security Teams’, The Register. Retrieved August 26, 2021, from
https://www.theregister.com/2020/08/14/mozilla_google_search/.
232
Humphries, M. (2020, August 14). ‘Mozilla Signs Lucrative 3-Year Google Search Deal for Firefox’. PCMag. Retrieved
August 26, 2021, from https://www.pcmag.com/news/mozilla-signs-lucrative-3-year-google-search-deal-for-Firefox.
233
Net marketshare. (n.d.). Browser Market Share. Retrieved September 26, 2021, from
https://www.netmarketshare.com/.
234
Patel, N. (2014, February 25). ‘The Internet Is Fucked (but we Can Fix it)’, The Verge. Retrieved August 26, 2021, from
https://www.theverge.com/2014/2/25/5431382/the-Internet-is-fucked.
235
Smith, M., Snyder, P., Livshits, B., Stefan, D. (2021). SugarCoat: Programmatically Generating Privacy-Preserving, Web-
Compatible Resource Replacements for Content Blocking. CCS '21: Proceedings of the 2021 ACM SIGSAC Conference on
Computer and Communications Security, November 2021, 2844–2857. Retrieved November 29, 2021 from
https://dl.acm.org/doi/pdf/10.1145/3460120.3484578.
57
Firefox can be considered a case study. Or an opportunity. For digital democracy, it is important
to guarantee sustainability and independence of such an infrastructure.
The EU should have a say in this. All parties would have much to gain:
Firefox (or other human-rights centred browsers) would be able to survive and
promote its mission;
Society would gain a better Web, a better digital public space and the start of a better
stage in the history of the Web;
Europe would gain sovereign technology, as well as an open and cooperative
model to offer the world in response to the geopolitical trends in China, Russia and
the US.
58
PART 3 – WEAKNESSES IN POLICY ENFORCEMENT RELATED

TO THE EU’S DIGITAL TRANSFORMATION
59
60
6. Precondition for democratic and sovereign digitalisation:

Access to the Internet as a right - State of the art
The right to (quality) Internet access as an essential component of democratic digitalisation
As has been widely recognised and stated by multiple international organisations236 including the
World Summit on the Information Society (WSIS) and the UN, for people to enjoy a life of dignity in
the digital age, it is necessary to guarantee equitable and universal access to the Internet and digital
technology. Additionally, connectivity helps to avoid discrimination and to ensure respect for the
full exercise of fundamental rights, both individually and for the collective democratic exercise of
rights 237, 238.
The digital world removes many of the barriers that stand between people and opportunities. By
the same token, those who cannot benefit from it, or can only do so under precarious and
inadequate conditions, suffer a serious comparative disadvantage. Digital is also an essential vehicle
for the exercise of many of the recognised Economic, Social, Cultural and Environmental Rights
(ESCR), such as equal access to health, democratic participation, education, information and
freedom of expression, livelihood opportunities and entrepreneurship, to name just a few.
236
Among others:
UN General Assembly. (2000, September 18). United Nations Millennium Declaration. Retrieved August 26, 2021, from
https://www.un.org/spanish/milenio/ares552.pdf: ‘To ensure that the benefits of new technologies, especially
information and communication technologies, in conformity with recommendations contained in the ECOSOC 2000
Ministerial Declaration, are available to all.’
Grey, A.-M. (2020, December 10). The Case for Connectivity, the New Human Right. UN Chronicle. Retrieved August 26,
2021, from https://www.un.org/en/un-chronicle/case-connectivity-new-human-right.
Hochschild, F. (2019, November 21). The Secretary-General’s Strategy on New Technologies. UN Chronicle. Retrieved
August 26, 2021, from https://www.un.org/en/un-chronicle/secretary-general’s-strategy-new-technologies-0.
N Department of Economic and Social Affairs. (2021). Leaving no one behind means leaving no one offline. Retrieved
August 26, 2021, from https://www.un.org/en/desa/leaving-no-one-behind-means-leaving-no-one-offline: ‘The
COVID-19 pandemic demonstrated that access to the Internet should be a basic right that helps protect people’s
health, jobs, and lives. Unfortunately, considerable gaps remain in realizing universal and affordable access to the
digital world,’ said María del Carmen Squeff, Chair of the 59th Session of the UN Commission for Social Development.
Peacock, A. (2020, December 18). Human Rights and the Digital Divide (1st ed.). Routledge. ISBN 9780367728175.
Retrieved August 26, 2021, from https://www.routledge.com/Human-Rights-and-the-Digital-
Divide/Peacock/p/book/9780367728175.
European Commission (2020, December 3). Communication from the Commission to the European Parliament, the
Democracy Action Plan. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=COM%3A2020%3A790%3AFIN&qid=1607079662423: ‘to access information and participate in
public life and democratic debate’.
237
The High-level Panel on Digital Cooperation, established by UN Secretary-General, recommended that ‘by 2030, every
adult should have affordable access to digital networks, as well as digitally-enabled financial and health services, as a
means to make a substantial contribution to achieving the Sustainable Development Goals’. UN Secretary-General’s
High-level Panel on Digital Cooperation (2019). The age of digital interdependence. Retrieved August 26, 2021, from
https://www.un.org/en/pdfs/DigitalCooperation-report-for%20web.pdf.
238
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
asserted in his report on Disease pandemics and the freedom of opinion and expression that ‘the pandemic, and the
importance of digital access to health-care information, highlights the profound need for expanding infrastructure to
allow for access in the first place. Kaye, D. (2015, May). Report of the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression, David Kaye. Paragraph 29. Human Rights Council. Retrieved August
26, 2021, from http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/
A.HRC.29.32_AEV.doc.
61
Lack of universal access to the Internet creates serious inequalities 239. This is referred to as the ‘digital
divide’. Some authors even speak of ‘digital poverty’ 240.
Digital divide
The expression ‘digital divide’ refers to the divide between those who have effective access to digital
and information technologies, in particular the Internet, and those who have very limited or no
access at all 241.
It describes any unequal distribution on socio-economic or geographical, or socio-cultural,
generational, gender or other physical or psychological grounds, in terms of access to and use of
information and communication technology 242. Traditionally it was seen primarily as an issue of
access. In the current context, relative inequality arises between those who have more bandwidth
and those who have less, affecting their possibilities to develop the associated skills.
Figure 14: Nearly half of the world is still offline
Source: Mozilla. (2020). The Internet Health Report 2020. A Healthier Internet Is Possible. Retrieved
August 26, 2021, from https://2020.Internethealthreport.org/slideshow-Internet-health/#10.
Thus, the digital divide in this sense involves:

1 Infrastructure: Telecommunications infrastructure and networks must be in place.
2 Accessibility: It must be possible to access the services offered by technology.
3 Training: The skills and knowledge to make use of the technology must exist 243.
239
Mildebrath, H., (2021, July 15). Internet access as a fundamental right: Exploring aspects of connectivity. European
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170,
Footnote 11 (page 2): ‘Study on Review of the scope of universal service, SMART 2014/0011, DG CNECT, European
Commission, 2016, pp. 50-53, showcases how universal service obligations address social exclusion problems’.
240
The World Bank. (n.d.). Digital Development. Retrieved August 26, 2021, from https://www.worldbank.org/
en/topic/digitaldevelopment/overview.
241
La Rue, F. (2011, May 16). Report of the Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression, Frank La Rue. Paragraph 61. Human Rights Council. Retrieved August 26, 2021, from
https://www.acnur.org/fileadmin/Documentos/BDL/2015/10048.pdf?view=1.
242
Extensive bibliography on the digital divide in Mildebrath, H., (2021, July 15). Internet access as a fundamental right:
Exploring aspects of connectivity. European Parliamentary Research Service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170, pages 1-
2, footnotes 11 et seq.
243
Digital divide. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Digital_divide.
62
This report will consider only the geographical and socio-economic digital divide, namely access to
connection, since resolving these situations is a prerequisite for addressing other forms of the digital
divide and digitalisation in itself.
Table 3: Fixed telephone, mobile phone and household Internet access (% EU)
Source: Eurobarometer. (2021, February). E-Communications in the Single Market. Retrieved August 26,
2021, from https://europa.eu/eurobarometer/surveys/detail/2232.
As already stated, the digitalisation of societies at all levels cannot be viewed solely from a technical
perspective but must inevitably have societal and individual rights as the focus for planning its
deployment, including Internet access and connectivity as the primary building blocks to enable
digitalisation. The European Commission expressed this in its Communication Shaping Europe’s
digital future: To take just one example: connectivity is the most fundamental building block of the
digital transformation. It is what enables data to flow, people to collaborate wherever they are, and
to connect more objects to the Internet, transforming manufacturing, mobility and logistic chains 244.
Ending the digital divide in terms of access is a necessity comparable to the need for access to water,
light and energy sources, i.e. basic/essential services. Even in these areas, much remains to be done.
On the issue of access to essential services as a fundamental right, one should refer to the current
struggles for affirmation of the so called ‘emerging human rights’ 245, 246.
244
European Commission (2020, February 19). Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of Regions Shaping Europe’s digital
future. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/
?uri=CELEX:52020DC0067.
245
Universal Forum of Cultures Barcelona (2004), Monterrey Forum (2007) and Institute of Human Rights of Catalonia
(2009) from https://dhpedia.wikis.cc/wiki/Declaraci%C3%B3n_Universal_de_Derechos_Humanos_Emergentes#:
~:text=La%20Declaraci%C3%B3n%20Universal%20de%20los,de%20Derechos%20Humanos%20Emergentes%20re
alizado.
246
Çali, B. (2020, January). ‘The Case for the Right to Meaningful Access to the Internet as a Human Right in International
Law’, in A. von Arnauld et al., Rights, Cambridge University Press, p. 280. The Cambridge Handbook of New Human
Rights. Retrieved August 26, 2021, from https://www.cambridge.org/core/books/cambridge-handbook-of-new-
63
Relation with existing essential services

The right to essential services is contemplated in the 1966 International Covenant on Economic,
Social and Cultural Rights (ICESCR) 247, the international reference text in the field of human rights.
Subsequently, the UN Committee on Economic, Social and Cultural Rights (CESCR) recognised that
the content of the right to adequate housing includes sustainable access to natural and common
resources, safe drinking water, energy for cooking, heating and lighting, and the right to water and
sanitation 248, 249. In 2010, the United Nations General Assembly explicitly recognised the human right
to water and sanitation and acknowledged that clean drinking water and sanitation are essential to
the realisation of all human rights 250.
In Europe, France was one of the first European states to enact a human right to water. The Brottes
Law 251, which takes a public service approach to water management and which facilitates and
enables better defence and protection of this right, prohibits water cut-offs for non-payment in the
case that individuals find themselves in vulnerable situations. This law set the example for future
laws that also ensures that the continuation of electricity and gas services is safeguarded 252. From
this perspective, it has been stated that, within the right for others to conduct a business 253 one
should move beyond considering the individual as a mere customer of a supply company and
start considering the individual as the holder of a subjective right to essential services at an
affordable price 254.
While the human right to water and sanitation has a long history and is widely recognised, the
debate has not been resolved for the right to energy, since it involves many resources and in
different forms, some of them relate to other debates such preserving environment, and some
suggest to focus on the right to energy services, namely it is not the energy that is important, but
what the energy enables (heating, lighting, food preparation, communication, etc.) 255.
human-rights/case-for-the-right-to-meaningful-access-to-the-Internet-as-a-human-right-in-international-
law/6E775EDD9E9FC008612521FBA68CE4CF.
247
Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into
force 3 January 1976, in accordance with article 27. Retrieved August 26, 2021, from
https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.
248
Office of the High Commissioner for Human Rights (1991, December 13). CESCR General Comment No. 4: The Right
to Adequate Housing (Art. 11 (1) of the Covenant). Retrieved August 26, 2021, from
https://www.refworld.org/pdfid/47a7079a1.pdf.
249
Office of the High Commissioner for Human Rights (2003, January 20). General Comment No. 15: The Right to Water
(Arts. 11 and 12 of the Covenant). Retrieved August 26, 2021, from https://www.refworld.org/pdfid/4538838d11.pdf.
250
United Nations General Assembly (2010, July 28). Resolution 64/292. The human right to water and sanitation.
Retrieved August 26, 2021, from https://undocs.org/pdf?symbol=en/A/RES/64/292.
251
LOI n° 2013-312 du 15 avril 2013 visant à préparer la transition vers un système énergétique sobre et portant diverses
dispositions sur la tarification de l'eau et sur les éoliennes. Retrieved August 26, 2021, from
https://www.legifrance.gouv.fr/loda/id/JORFTEXT000027310001/2021-09-30/.
252
Ley 24/2015, de 29 de julio, de medidas urgentes para afrontar la emergencia en el ámbito de la vivienda y la pobreza
energética.
«DOGC» núm. 6928, de 05/08/2015, «BOE» núm. 216, de 09/09/2015. Comunidad Autónoma de Cataluña. Referencia:
BOE-A-2015-9725. Retrieved August 26, 2021 from https://www.boe.es/buscar/act.php?id=BOE-A-2015-9725.
253
Article 16 of the Charter of Fundamental Rights of the European Union. Retrieved August 26, 2021 from
https://www.europarl.europa.eu/charter/pdf/text_en.pdf.
254
Catalan Ombudsman. (2014, December). Informe sobre el derecho a los suministros básicos (electricidad, agua y gas).
Retrieved August 26, 2021, from http://www.sindic.cat/site/unitFiles/3754/Informe preus
subministraments_cast_cubiertas.pdf.
255
In this respect, see the following non-exhaustive references: Walker, G. (2016). The Right to Energy: Meaning,
Specification and the Politics of Definition. L’Europe en Formation, (378), 26-38.; Walker, G., & Day, R. (2012). Fuel
64
Right to access the Internet

In the EU and elsewhere, the recognition of access to the Internet as a human right has also been
raised: it ranged from the announcement by the Estonian Parliament defining it as a universal
service in 2000 256, the French Constitutional Council including it in the scope of the fundamental
right to freedom of expression in 2009 257, or similarly by other states thereafter 258, 259, to the debate
in the European institutions recently promoted by the President of the European Parliament David
Sassoli 260. The World Wide Web Consortium advocates for the Internet to be considered a basic
human right while considering it a lifeline to which almost half of humanity still has no access 261.
An interesting point can be taken from Mildebrath 262, who argues that if the right of access is
considered to be included in other rights, it may inherit limitations from reinterpreted legal
provisions. On the other hand, if it is established as a standalone right, it can be defined flexibly and
would only be limited by rights and freedoms that clash with it. Jasmontaite and de Hert suggest
three scenarios in which the right to the Internet could be recognised as a fundamental right in
Europe:
“(1) the CJEU might recognise it as a general principle of EU law stemming from 'the
constitutional traditions common to the Member States' according to Article 6 of the TEU,
(2) the CJEU and the ECtHR might introduce innovative elements, when addressing the modern
concerns of a digital society and potentially even rely on high level political agreements,
(3) the co-legislators or the CJEU might 'incorporate' rights recognised at an international level
(particularly the ECHR/ECtHR and exceptionally the ECS/ECSR) in the EU fundamental rights
framework.” 263
This report will not further examine the subject of the formal debate as to whether or not it can be
declared a human right from a legal point of view, where some argue that it is possible 264 and others,
poverty as injustice: Integrating distribution, recognition and procedure in the struggle for affordable warmth. Energy
Policy, 49, 69-75.).
256
Estonian Telecommunications Act (2000). Proclaimed by Resolution No. 738 of the President of the Republic of 1
March 2000. Retrieved August 26, 2021, from https://www.riigiteataja.ee/akt/71844.
257
Conseil Constitutionnel. Décision n°2009-580 DC du 10 juin 2009. Retrieved August 26, 2021, from
https://www.conseil-constitutionnel.fr/decision/2009/2009580DC.htm.
258
La Rue, F. (2011, May 16). Report of the Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression, Frank La Rue. Paragraph 65. Human Rights Council. Retrieved August 26, 2021, from
https://www.acnur.org/fileadmin/Documentos/BDL/2015/10048.pdf?view=1.
259
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170, page 9,
footnotes 50 and 51.
260
EP Multimedia Centre. (2020, October 28). Video debate with David SASSOLI, EP President - Ideas for a new world “Internet,
a new human right.” Retrieved August 26, 2021, from https://multimedia.europarl.europa.eu/en/-ideas-for-a-new-
world-Internet-a-new-human-right_I197966-V_v.
261
World Wide Web Foundation. (2021, June 2). VIDEO: Access to the web is a lifeline. It should be a basic right. Retrieved
August 26, 2021, from https://webfoundation.org/2021/06/video-access-to-the-web-is-a-lifeline-it-should-be-a-
basic-right.
262
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170, page 10.
263
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170, pp.33-34.
264
In this respect, see the following non-exhaustive references:
65
as in the arena of the right to essential services such as energy 265, that a technology cannot be
considered a right because it is only a tool to fulfil one or more purposes and not an end in itself 266.
In any case, rights and their hierarchies are human creations and contribute to greater equity and
justice, as well as a better democracy. Regardless of how a potential right to Internet access is
Best, Michael L. (2004) "Can the Internet Be a Human Right?," Human Rights & Human Welfare: Vol. 4 : Iss. 1 , Article 13.
In Human Rights and the Internet edited by Steven Hick, Edward F. Halpin, and Eric Hoskins. New York: Palgrave
Macmillan, 2000. 276pp. Available at: https://digitalcommons.du.edu/hrhw/vol4/iss1/13;
de Hert, P. J. A., & Kloza, D. (2012). Internet (access) as a new fundamental right. Inflating the current rights framework?
European Journal of Law and Technology, 3(3). Available at:
https://research.tilburguniversity.edu/en/publications/Internet-access-as-a-new-fundamental-right-inflating-the-
current-;
D. Luch and S. Schulz. (2012). Das Recht auf Internet als Grundlage der Online-Grundrechte, Lorenz-von-Stein-Institut
für Verwaltungswissenschaften, 2013, p. 56 et seq. Available at: https://negz.org/wp-content/
uploads/2017/03/Abschlussbericht-ISPRAT_MSV_16_Recht_auf_Internet.pdf
W. Benedek and M. Kettemann, (2013). Freedom of Expression and the Internet. Council of Europe. Available at:
https://book.coe.int/en/attachment?id_attachment=709;
Tully, S. (2014). A Human Right to Access the Internet? Problems and Prospects, Human Rights Law Review, Volume 14,
Issue 2, June 2014, Pages 175–195, https://doi.org/10.1093/hrlr/ngu011;
D. Joyce (2015). "Privacy in the Digital Era: Human Rights Online?" Melbourne Journal of International Law 270.
Available at: http://classic.austlii.edu.au/au/journals/MelbJIL/2015/9.html;
Tomalty, J. (2017). Is There a Human Right to Internet Access? Philosophy Now 118:6-8. Available at:
https://philpapers.org/rec/TOMITA;
Ł. Szoszkiewicz, (2018). Internet Access as a New Human Right? State of the Art on the Threshold of 2020. Przegląd
Prawniczy Uniwersytetu im. Adama Mickiewicza. 8. 50. 10.14746/ppuam.2018.8.03. Available at:
https://www.researchgate.net/publication/328290234_Internet_Access_as_a_New_Human_Right_State_of_the_Ar
t_on_the_Threshold_of_2020;
Peacock, A. (2020, December 18). Human Rights and the Digital Divide (1st ed.). Routledge. ISBN 9780367728175.
Retrieved August 26, 2021, from https://www.routledge.com/Human-Rights-and-the-Digital-
Divide/Peacock/p/book/9780367728175;
L. Jasmontaite and P. De Hert (2020, February). 'Access to the Internet in the EU', Brussels Privacy Hub Working Paper,
Vol. 6(19), Available at: https://brusselsprivacyhub.eu/publications/BPH-Working-Paper-VOL6-N19.pdf;
Çali, B. (2020, January). ‘The Case for the Right to Meaningful Access to the Internet as a Human Right in International
Law’, in A. von Arnauld et al., Rights, Cambridge University Press, p. 280. The Cambridge Handbook of New Human
Rights. Retrieved August 26, 2021, from https://www.cambridge.org/core/books/cambridge-handbook-of-new-
human-rights/case-for-the-right-to-meaningful-access-to-the-Internet-as-a-human-right-in-international-
law/6E775EDD9E9FC008612521FBA68CE4CF
J. Thornhill,(2020). Internet access is both a human right and a business opportunity. Financial Times. Available at:
https://www.ft.com/content/872dc219-d4d8-4896-92d3-7f9d45a5ce90;
O. Pollicino, (2020). The Right to Internet Access: Quid Iuris? In (pp. 263-275). Edited by Andreas von Arnauld, Christian-
Albrechts Universität zu Kiel, Germany, Kerstin von der Decken, Christian-Albrechts Universität zu Kiel, Germany, Mart
Susi. Publisher: Cambridge University Press doi:10.1017/9781108676106.021. Available at:
https://www.cambridge.org/core/books/cambridge-handbook-of-new-human-rights/right-to-Internet-
access/28533B0871DD91BC1C88F66C245A4DAE;
Reglitz M (2020). The Human Right to Free Internet Access. Journal of Applied Philosophy. Volume 37, Issue 2 p. 314-
331. https://doi.org/10.1111/japp.12395. Available at: https://onlinelibrary.wiley.com/doi/abs/10.1111/japp.12395;
Archer, A., & Wildman, N. (2021). Internet Access as an Essential Social Good. In E. Aarts, H. Fleuren, M. Sitskoorn, & T.
Wilthagen (Eds.), The New Common: How the COVID-19 Pandemic is Transforming Society (pp. 29–33). Springer
International Publishing. Retrieved August 26, 2021, from https://doi.org/10.1007/978-3-030-65355-2_4.
265
In this respect, see the following non-exhaustive references: Walker, G. (2016). The Right to Energy: Meaning,
Specification and the Politics of Definition. L’Europe en Formation, (378), 26-38.; Walker, G., & Day, R. (2012). Fuel
poverty as injustice: Integrating distribution, recognition and procedure in the struggle for affordable warmth. Energy
Policy, 49, 69-75.
266
The Vice-President and Chief Internet Evangelist of Google, Vint Cerf, 2012, or A. Fagan in Human Rights, Internet
Encyclopedia of Philosophy and J. Nickel, Human Rights, Stanford Encyclopaedia of Philosophy, 11 April 2019.
66
conceived in its definition, the legal conditions need to be in place for it to be guaranteed in an
inclusive and quality manner. Those conditions will be analysed further on.
Currently in Europe, and since 2009, access to the Internet can already be considered a right. Its
consistency depends on the transposition of the Directive by each Member State. The issue is what
guarantees they have put in place so that it is really enjoyed at its higher standards.
The path from a commodity to a right has had and continues to have several stages: from being an
invention (1), the Internet (and digital) has become a commodity, a consumer product (2). It
can then be considered a service (3) and then a right (4). Now it needs to be consolidated as
an effective universal essential quality service, governed by the highest standards and
protections (5). From there its adoption as a fundamental right (6) could be a natural step.
Regulatory state of the art on the right to (quality) access to

the Internet from a human rights perspective
’Meaningful participation in today's digital age requires a high-speed broadband connection to
the Internet.’ António Guterres, UN Secretary-General (2020) 267
6.1.1. From consumer product to right

With the transposition of Directive 2009/136/EC 268 from 2009 into Member State laws, the Internet
went from being a commodity to being a right, an entitlement in the sense that no European citizen
should be denied access to the Internet.
After that, it soon became clear that functional access was not enough to meet the needs of
individuals, but that it needed to be quality access: The right to quality Internet access.
With the current European Electronic Communications Code 269, EU Member States have to ensure
their population has access to the Internet with the consideration of a universal service, meaning
that all consumers have the right of access, at an affordable price, to an adequate broadband
Internet connection and voice communications services, at a fixed location.
States are responsible for ‘ensuring the bandwidth necessary for social and economic participation
in society’ by consumers everywhere within their territory.
More detail on the current regulation can be found in the annexed Factsheet 5: The EU
framework for the right to access the Internet and international standards for high quality
essential services to improve it.
267
UN Secretary-General (2020, May 29). Road map for digital cooperation: implementation of the recommendations of
the High-level Panel on Digital Cooperation. Retrieved August 26, 2021, from https://undocs.org/es/A/74/821.
268
Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive
2002/22/EC on universal service and users’ rights relating to electronic communications networks and services,
Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic
communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible
for the enforcement of consumer protection laws. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32009L0136.
269
Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European
Electronic Communications Code. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32018L1972.
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Despite this, European citizens are still quite far from enjoying equal quality right of access to the
Internet.
Case Study
As an example, returning to Spain as the case study of this report, with regard to access to the Internet
and telephone services, there is still a struggle for greater equality. The discounted rates established by
the General Telecommunications Law are only accessible to retired individuals below a certain income
level (120% of the public revenue index (IPREM)), without being available to other vulnerable groups, for
no objective reason.
It feels far from a solution since this also happens to more consolidated essential services; in the case of
the discounted rate for electricity, which should allow access to people who cannot afford to pay for their
supply of electricity, although some five million people are entitled to this benefit, only a fifth of them are
able to access it 270,271. Overly complex regulations and an application process managed directly by the
electricity operators are part of the problem 272. Additionally, the software determining who can access
these discounted rates has generated unjustified and arbitrary decisions. The organisation CIVIO has taken
legal action against the decision by the Council for Transparency and Good Governance denying the right
to scrutinise its source code 273 to be able to identify the criteria used to determine such decisions. This
case exemplifies how two digital divides are combined: On the one hand, poverty in accessing essential
services, and, on the other hand, a use of digital resources with minimal institutional transparency that
does not allow citizens access to vital information and services.
270
Civio (n.d.). Que las ayudas públicas lleguen a quienes más las necesitan. Retrieved August 26, 2021, from
https://civio.es/acceso-a-bono-social/.
271
Belmonte, E. (2019, May 16). La aplicación del bono social del Gobierno niega la ayuda a personas que tienen derecho a
ella. Civio. Retrieved August 26, 2021, from https://civio.es/tu-derecho-a-saber/2019/05/16/la-aplicacion-del-bono-
social-del-gobierno-niega-la-ayuda-a-personas-que-tienen-derecho-a-ella/.
272
Aliança contra la pobresa energètica. (2017, November 23). [Comunicado] Endesa pone trabas a las familias para que
puedan acceder al nuevo bono social. Retrieved August 26, 2021, from
https://pobresaenergetica.es/es/2017/11/23/comunicado-endesa-pone-trabas-las-familias-para-que-puedan-
acceder-al-nuevo-bono-social/.
273
https://civio.es/acceso-a-bono-social/.
68
Table 4: Evolution of Universal Service – Functional Internet Access (FIA)
Source: BEREC. (2020, June 11). BEREC Report on Member States’ best practices to support the defining
of adequate broadband Internet Access Service (IAS). Retrieved August 26, 2021, from
https://berec.europa.eu/eng/document_register/subject_matter/berec/reports/9289-berec-report-on-
member-states-best-practices-to-support-the-defining-of-adequate-broadband-Internet-access-
service-ias.
69
6.1.2. Net Neutrality

‘The Internet as we know it is based on the profoundly democratic principle of Net Neutrality. This
principle states that every bit circulating on the Internet must be treated in the same way, without
distinction. Bits cannot be slowed down or prioritised according to the power of the sender or the
recipient’ 274. The architecture of the Internet based on distributed cooperation between nodes,
based on democratisation since its inception 275, by design and by default, have to be accompanied
by legislative elements to ensure it is guaranteed in the future.
The establishment of the Net Neutrality principle has been reinforced following the adoption of EU
Regulation No 2015/2120 laying down measures concerning open Internet access 276, 277, which
recognises the basic principles of Net Neutrality to be applied throughout the whole Union.
Net Neutrality is the principle that Internet Service Providers (ISPs) must treat all Internet
communications equally, and not discriminate flow or charge differently based on users, contents,
protocols, platforms, applications, type of equipment, source address, destination address or
method of communication 278. Without Net Neutrality, ISPs may prioritise certain types of traffic,
meter others, or potentially block traffic from specific services, while charging consumers for various
tiers of service 279.
From the perspective of democratic rights and the Internet as a tool for democratisation, the
consolidation of the structure of the Internet as a non-discriminatory structure through specific
legislation on Net Neutrality is a crucial step towards creating a framework of guarantees so that
access to the Internet ceases to be still somehow a commodity and consolidates as a right an
indispensable tool for governance and the common and individual good.
In short, Net Neutrality means that the end user has the right to a complete and quality Internet 280;
it is the principle that differentiates the Internet from other means like the television, where a few
players with sufficient economic or institutional resources can see and be seen and the rest of the
population can only be passive viewers.
274
Sassoli, D. EP President. (2020, July 19). "Il diritto al web sia una battaglia europea", La Repubblica. Retrieved August
26, 2021, from
https://www.repubblica.it/politica/2020/07/19/news/sassoli_il_diritto_al_web_sia_una_battaglia_europea_-
262314742/.
275
See chapter 1.
276
Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down
measures concerning open Internet access and amending Directive 2002/22/EC on universal service and users’ rights
relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public
mobile communications networks within the Union. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32015R2120.
277
And its development in: BEREC. (11 June 2020). Guidelines on the Implementation of the Open Internet Regulation.
Retrieved August 26, 2021, from https://berec.europa.eu/eng/document_register/subject_matter/berec/
regulatory_best_practices/guidelines/9277-berec-guidelines-on-the-implementation-of-the-open-Internet-
regulation.
278
Wu, T. (2003). "Network Neutrality, Broadband Discrimination". Retrieved August 26, 2021, from
https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=2282&context=faculty_scholarship.
279
Net Neutrality. Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Net_neutrality.
280
See definition in the next section.
70
In 2014, during the Obama administration, through a pioneering initiative after some isolated
experiences first in Chile (2010) 281 and then in European countries such as the Netherlands (2012)282,
the Federal Communications Commission proclaimed the Internet a public utility 283, setting rules
against blocking, deletion and paid prioritisation of Internet traffic, and thus guaranteeing Net
Neutrality. However, in 2017 the Trump administration ceased to consider it as such 284 and also
repealed the rule enshrining Net Neutrality.
These circumstances leave the European Union with the responsibility to be the benchmark for
digital equity. European laws thus lead the world in preserving this crucial structural asset of Net
Neutrality, which is essential for freedom of expression and information and for online competition
and innovation.
However, some authors remind that Net Neutrality shouldn't be an excuse to avoid a more
democratic strategy around the infrastructure ownership and management 285.
6.1.3. Quality Internet as an essential universal public service of general

interest
It is important to frame the right to Internet access as an essential public service of general interest
that requires Universal Services Obligation (USO) to the highest standards to avoid its importance
being considered only from a market infrastructure perspective, and thus only as a service of general
economic interest, ignoring the human factor and the need to guarantee basic fundamental rights.
On the basis of Smithian reasoning that distinguishes between necessary goods and luxuries, as
mentioned, the majority of authors argue that the Internet is an essential and necessary social good
in contemporary society. If the Internet is considered to be an essential social good, governments
have a responsibility to ensure that citizens enjoy adequate access 286, 287.
For democratic digitalisation, it is crucial to guarantee universal access to the Internet and its
functionalities according to the highest standards that can be achieved, from the point of view of
both essential services and basic communication services. Those standards are:
281
Ley núm. 20.453 Consagra el principio de neutralidad en la red para los consumidores y usuarios de Internet. Retrieved
September 16, 2021, from: https://www.bcn.cl/leychile/navegar?idNorma=1016570.
282
Wet van 10 mei 2012 tot wijziging van de Telecommunicatiewet ter implementatie van de herziene
telecommunicatierichtlijnen. Retrieved September 16, 2021, from: https://zoek.officielebekendmakingen.nl/stb-
2012-235.html.
283
Federal Communications Commission (2015). Open Internet Order. Retrieved August 26, 2021, from
https://www.fcc.gov/document/fcc-releases-open-Internet-order. The Open Internet Order reclassified broadband
Internet access as a “telecommunications service” under Title II of the Communications Act.
284
Federal Communications Commission (2018). Restoring Internet Freedom Order. Retrieved September 16, 2021, from:
https://www.fcc.gov/document/fcc-releases-restoring-Internet-freedom-order. The Restoring Internet Freedom
Order removed Title II obligations by reinstating the “information service” classification (Title I of the Communications
Act) of broadband Internet access service.
285
"Even if successful, the drive to network neutrality would keep the physical infrastructure a technical bottleneck,
owned by a small number of firms facing very limited competition, with wide legal latitude for using that control to
affect the flow of information over their networks". Benkler, Y. (2006). The Wealth of Networks. How Social Production
Transforms Markets and Freedom. New Haven and London: Yale University Press. 401 pp.
https://doi.org/10.1177/1084713807301373.
286
Archer, A., & Wildman, N. (2021). Internet Access as an Essential Social Good. In E. Aarts, H. Fleuren, M. Sitskoorn, & T.
Wilthagen (Eds.), The New Common: How the COVID-19 Pandemic is Transforming Society (pp. 29–33). Springer
International Publishing. Retrieved August 26, 2021, from https://doi.org/10.1007/978-3-030-65355-2_4.
287
Romero, M.J., Sonkin, F. (2021, October 6). Reclaiming sustainable infrastructure as a public good. Society for
International Development & Eurodad. Retrieved October 18, 2021 from:
https://www.eurodad.org/sustainable_infrastructure_report.
71
Respect for Net Neutrality and continuous access.

High-quality access at optimal upload and download speeds.
Availability, or non-exclusion of anyone from supply.
Accessibility and affordability, ensuring that all individuals, irrespective of income
or other socio-economic, geographical or personal considerations, can always
obtain access on equal terms.
Figure 15: When the Internet isn’t affordable, people stay offline.
Interoperability, freedom of choice and portability of services.
Figure 16: Four of the most used platforms are owned by Facebook. Ownership of the
most used platforms
Access that respects the privacy, confidentiality and inviolability of

communications and protection of personal data, privacy and intimacy and that is
free from surveillance.
72
It is the right of all citizens to participate in the information society and to access a minimum
set of electronic communications services and digital technologies of good quality at an
affordable price (Code of EU online rights) 288, with the application of a human rights-based
approach being of paramount importance when providing and expanding such access (UN
General Assembly, 2016) 289, thus ensuring it is free, open, accessible and available to all and
involving the participation of multiple stakeholders (UNESCO, 2013) 290.
More detail on the legal definition of the above mentioned standards can be found in the
annexed Factsheet 5: The EU framework for the right to access the Internet and international
standards for high quality essential services to improve it.
The geographical digital divide

Internet Access as a right means ensuring that the Internet reaches wherever there is housing or
economic activity, in the same way as water or electricity. The cost of connecting a location with
fibre optics, the technology that offers the best possible capacity, is similar to the connection cost
for water or electricity and in some cases can use pre-existing infrastructure 291.
288
European Commission. (2012). Code of EU online rights. Digital Agenda for Europe. SBN 978-92-79-26521-1.
doi:10.2759/8899. Retrieved August 26, 2021, from https://op.europa.eu/en/publication-detail/-
/publication/50d06da2-18bb-40b2-9e97-7d19527f2c88/language-en/format-PDF.
289
UN General Assembly (2016, June 22). The promotion, protection and enjoyment of human rights on the Internet. Human
Rights Council. Retrieved August 26, 2021, from https://documents-dds-
ny.un.org/doc/UNDOC/LTD/G16/131/89/pdf/G1613189.pdf?OpenElement.
290
UNESCO. (2013, September 2). Internet Universality: A Means Towards Building Knowledge Societies and the Post-
2015 Sustainable Development Agenda. Retrieved August 26, 2021, from http://wayback.archive-
it.org/10611/20170508213300/http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/news/Internet_u
niversality_en.pdf.
291
Some examples:
Deloitte & APC. (2015, April). Unlocking broadband for all.Broadband infrastructure sharing policies and strategies in
emerging markets. Retrieved August 26, 2021 from https://www.apc.org/sites/default/
files/Unlocking%20broadband%20for%20all%20Full%20report.pdf
Strusani, D., Houngbonon, G.V. (2020, February). Accelerating Digital Connectivity Through Infrastructure Sharing.
Fresh Ideas about Business in Emerging Markets. EM Compass, Note 79. World Bank Group. Retrieved August 26, 2021
from https://www.ifc.org/wps/wcm/connect/2d3c4eff-12a8-4b0b-b55d-9113a950ed33/EMCompass-Note-79-
Digital-Infrastructure-Sharing.pdf?MOD=AJPERES&CVID=n2dwWtn
Department for Digital, Culture, Media & Sport and Matt Warman MP. (2020, June 12). Water and energy networks could
be used to deliver nationwide gigabit broadband [Press release]. UK Government. Retrieved August 26, 2021 from
https://www.gov.uk/government/news/water-and-energy-networks-could-be-used-to-deliver-nationwide-gigabit-
broadband
Red Eléctrica de España. (2021, May 14). Red Eléctrica lleva Internet a la España despoblada facilitando el acceso a la fibra
óptica de la red de transporte [Press release]. Retrieved August 26, 2021 from https://www.ree.es/es/sala-de-
prensa/actualidad/nota-de-prensa/2021/05/red-electrica-lleva-Internet-la-espana-despoblada
73
Figure 17: The short proximity of underground infrastructures (Electricity, Telecom,

Gas, Water and Sewage) allows important cost savings through synergies
Source: Casier, Koen & Verbrugge, Sofie & Lannoo, Bart & Ooteghem, Jan & Demeester, Piet. (2011,
January). Improving the FTTH business case benefits of an holistic approach. he Journal (Institute of
Telecommunications Professionals). 5. 46-53. Retrieved August 26, 2021 from:
https://www.researchgate.net/figure/The-short-proximity-of-underground-infrastructures-Electricity-
Telecom-Gas-Water-and_fig2_290298901
The technologies available to provide Internet connectivity can be grouped into three broad
families: 1) satellite, 2) mobile or wireless such as 5G and 3) cable. The performance of these different
technologies is not the same, and neither is their cost to the user, and the corresponding scope of
application will not be the same in the medium to long term. As one improves, so do the others, and
those that will emerge in the future must also always be taken into consideration. This is why, the
point of reference to provide equal access to the Internet to all should be the best possible and most
stable technology, since this is what will potentially create differences between geographical areas.
For this reason, and for the purposes of assessing the digital divide, the deployment of fibre optic
networks will be taken as a reference in this report, since neither satellite nor 5G can currently – or
in the current state of their future design – guarantee real and affordable reach for all geographical
areas. For example, 5G might not be able to fulfil the promise of more connectivity because its
antennas will have shorter reach as it is designed more for densely populated cities 292.
As far as cable connection is concerned, the geographical digital divide would incorporate two
aspects: 1) the availability of connectivity infrastructures between areas (middle mile) and 2) an
access network to the final connections (last mile) 293. The geographical digital divide cannot
therefore be resolved by looking at these areas (middle mile or last mile) separately, as both are
necessary.
In the European Union, in general, there is a remarkable availability of infrastructure to provide
connectivity between geographical areas (middle mile) reaching significant population centres,
either using networks built for this purpose or others built for other purposes, such as fibre optics
deployed on roads and highways, railways, gas networks, etc.
292
Privacy International. (2019, July 23). Welcome to 5G: Privacy and security in a hyperconnected world (or not?). Retrieved
August 26, 2021, from https://www.privacyinternational.org/long-read/3100/welcome-5g-privacy-and-security-
hyperconnected-world-or-not.
293
See: Garrity, J., Amadou Garba, A. (2020). ‘The Last-mile Internet Connectivity Solutions Guide’. International
Telecommunication Union (ITU). Retrieved August 26, 2021, from https://www.itu.int/en/ITU-
D/Technology/Documents/LMC/ITU%20Last-Mile%20Internet%20Connectivity%20Solutions%20Guide%20-
%20Slides.pdf.
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As detailed by Mildebrath 294, Internet coverage in the European Union (EU) currently stands at
almost 100%. However, numbers of broadband take-up is 78%, next-generation access (NGA)
coverage providing at least 30 Mbps 86% and 5G readiness 21%. In rural areas, 10% of households
are not covered by any fixed network and 41% are not covered by next-generation access
technology capable of reaching 30 Mbps. Some 8.4% of those EU residents who had a fixed
broadband subscription did not receive the minimum of 10 Mbps approximately necessary for
ensuring the functionality of essential service in 2020. The proportion of these people ranged from
23.3% in Italy to 7.8% in Slovenia and 0.3% in Greece. Currently, there are no official, EU-wide and
up-to-date reports on the contract compliance of Internet service providers (ISPs), but there are
strong indications that ISPs are not delivering the speeds advertised even in denser city areas.
Although there are still significant differences between the EU Member States, the problem persists
broadly even taking Spain as an example, ranked as one of the countries at the forefront in
deployment of fibre in Europe with one of the highest percentages of connection to fibre optic (80%
of households, above the EU average of 34%). In Spain, in rural areas this rate is 46% compared to
the European average of 21% 295 and a significant number of workplaces and living spaces (last-mile
connections) remain unconnected 296. In summary, the problem persists and there is still a significant
geographical digital divide, with a large part of EU territory still without sufficient network access.
The problem has to be found in a lack of optimised deployment of last-mile infrastructure.
294
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170, page 1,
referencing the following documents:
- European Commission (2020). Report on Digital Economy and Society Index (DESI) 2020 – Human capital – Digital
Inclusion and Skills. Retrieved from: https://ec.europa.eu/digital-single-market/en/human-capital
- European Commission (2020). Report on Digital Economy and Society Index (DESI) 2020 – Connectivity. Retrieved
from: https://ec.europa.eu/digital-single-market/en/connectivity
- European Commission (2020). Q&A on the Digital Economy and Society Index. Retrieved from:
https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1022
- European Commission (2018). Report on Broadband Coverage in Europe 2018, SMART 2016/0043, DG CNECT, p. 16.
Retrieved from: https://ec.europa.eu/digital-single-market/en/news/study-broadband-coverage-europe-2018
- European Commission (2016). Study on Review of the scope of universal service, SMART 2014/0011, DG CNECT, p. 9
and p. 11. Retrieved from: https://op.europa.eu/de/publication-detail/-/publication/6eee3cb7-9adf-11e6-868c-
01aa75ed71a1
- European Commission (2020, June). Digital Scoreboard: Broadband speeds and prices. Retrieved from:
https://digital-agenda-data.eu/charts/analyse-one-indicator-and-compare-countries#chart=
- German Federal Network Agency (2020). Annual report on net neutrality in Germany 2019-2020.
- European Commission (2014, October). Study on quality of broadband services in the EU, SMART 2010/0036, DG
CNECT.
- European Commission (2016). Consultation on Needs for Internet speed and quality beyond 2020. Retrieved from:
https://wayback.archive-it.org/12090/20210729062739/https://ec.europa.eu/digital-single-
market/en/news/contributions-and-preliminary-trends-public-consultation-needs-Internet-speed-and-quality.
295
See: European Commission. (2020, June 11). Digital Economy and Society Index (DESI) report for 2020. Retrieved
August 26, 2021, from
https://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/swd/2020/0111/COM
_SWD(2020)0111(PAR04)_EN.pdf.
296
Observatorio Nacional de las Telecomunicaciones y de la SI (ONTSI). (2019). Informe sobre la Sociedad de la
Información y las Telecomunicaciones y el Sector TIC y de los Contenidos en España por Comunidades Autónomas.
Gobierno DE España. Ministerio de Economía y Empresa. Retrieved August 26, 2021, from
https://www.ontsi.es//sites/ontsi/files/2019-10/Informe%20Espa%c3%b1a.pdf.
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The EU’s Telecom Package 297(2007-2009) recognises the existence of market failures, namely
situations where the liberalisation of the sector not only fails to solve the problem, but even
threatens to make it worse.
Market-failure barriers do not stem solely from a lack of infrastructure in itself, but also from its
effective availability for interconnection with network links, namely barriers arising from captive,
poorly managed or poorly used infrastructures that are subject to barriers to access or to other
threats.
An example of barriers can be seen when the regulator or organisation operating the infrastructures
privately sets fixed costs for the connection to the infrastructure while ignoring the population
density. Paradoxically in places where the infrastructure already exists, it could be economically
unfeasible to access it or there is a significant cost compared to more densely populated areas even
if a consistent number of users can be connected.
In addition to these barriers, distance-indexed recurrent fees from the operators to which the
infrastructures belong or even by the municipalities, could be applied increasing the tax rate ratio
per household for the most remote and least densely populated areas. Again reaching an existing
infrastructure may be unfeasible not because of the actual cost, but because of the tax burden. It
does not usually occur when existing lines are rented. In this case, the prices use to be per line and
not indexed by distance.
As explained above, it is in the access network (last mile) that infrastructure deficits exist. This
contrasts with the fact that some private operators have often deployed multiple overlapping
access networks to serve the same population centres (overbuilding) 298.
This could be avoided with some legal adjustments or with a broad and systematic interpretation of
the Electronic Communications Code that already provides for the sharing of infrastructures
(wholesale access obligation), for example in vertical symmetric access points (buildings) or in the
radio spectrum, which is already often applied 299.
Several aspects of overbuilding deserve attention:
Networks, by the very fact of becoming operational, consume energy to light up
and to transport data, causing an unnecessary excess in carbon footprint, thus
moving away from carbon-reduction targets 300 and working against the European
Commission’s efforts to reduce the environmental impact of electronic
communications network deployment 301.
297
Telecoms Package (n.d.). Retrieved August 26, 2021, from https://en.wikipedia.org/wiki/Telecoms_Package.
298
See paragraph on ‘Cable suffering from FTTH effect’ in: Arciniegas, J., Dann, J., Fry, W., & Idrissova, I. (2017, March). The
return of the challengers. RBC Capital Markets. https://www.grupomasmovil.com/wp-content/uploads/2016/05/RBC-
Iniciation_The_return_of_the_challengers2017-03-30.pdf.
299
Article 61.3 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing
the European Electronic Communications Code. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv%3AOJ.L_.2018.321.01.0036.01.ENG and BEREC (2020, June). Draft BEREC Guidelines on
the Criteria for a Consistent Application of Article 61(3) EECC (BoR (20) 106). Retrieved August 26, 2021, from
https://berec.europa.eu/eng/document_register/subject_matter/berec/public_consultations/9282-draft-berec-
guidelines-on-the-criteria-for-a-consistent-application-of-article-613-eecc.
300
See: International Telecommunication Union (ITU). (2020, February 27). ‘ICT industry to reduce greenhouse gas
emissions by 45 per cent by 2030’. Retrieved August 26, 2021, from https://www.itu.int/en/mediacentre/Pages/PR04-
2020-ICT-industry-to-reduce-greenhouse-gas-emissions-by-45-percent-by-2030.aspx.
301
BEREC. (2021, March 16). BEREC’s Opinion on the revision of the Broadband Cost Reduction Directive. Retrieved
August 26, 2021, from https://berec.europa.eu/eng/news_and_publications/whats_new/8165-berecs-opinion-on-
the-revision-of-the-broadband-cost-reduction-directive.
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In sparsely populated areas, where investment recovery is more complex, this can
be used as a tactical tool to eliminate competitors with less financial muscle,
especially small, local companies, thereby strengthening dominant positions and
encouraging speculative behaviour 302. It should be borne in mind that there is no
technological disadvantage in the same infrastructure being shared between a
variety of different service providers, as long as it is operated in a neutral way and
with the corresponding oversight to guarantee non-discrimination (Net
Neutrality).
These companies are often both operators and service providers at the same time,
a scenario that can easily lead to conflicts of interest and facilitates the creation of
situations of discrimination or undue prioritisation that ultimately affect Net
Neutrality.
It seems that the public funding intended by the EU for broadband extension,
despite the necessary caveats, does not have effective monitoring to avoid the
problems described above. An example to illustrate the problem referred to is the
funds for the broadband extension programme 303 distributed by the Government
in Spain. Even if not explicitly, the fund-distribution mechanisms end up mainly
implemented on a by-province basis. The result is that allocation is concentrated
in a very small number of major bidders and the small local operators end up de
facto excluded 304.
If overbuilding happens at the hands of big companies in locations where small
players have first established the network with first-hand knowledge of a local
problem, this could mean the elimination of local alternatives that could be
sustainable in their own right. This is contrary both to free competition and to the
aim of the European funds, which is to bridge the geographical digital divide.
When a small company invests in an infrastructure in an area that the big bidders
have not reached due to its low profitability because it is unpopulated or has few
users, if there are no conditions imposed such as the sharing of the infrastructure
already deployed (which legislation could allow as a wholesale access obligation),
there can be practices in which the large bidders for these funds use them to
redeploy in such areas (overbuilding). This can result in small investors —or even
communities that have taken steps to organise initiatives— not only not having
access to public funds but being in a situation where these funds are used to make
their return on investment difficult or impossible and to facilitate dominant
positions that may have an interest in perpetuating the digital divide. This means
302
See how incumbents announce agreements with favourable prices compared to regulated prices, causing
discrimination in access to their infrastructure in: del Castillo, I. (2019, February 14). Telefónica llega a un acuerdo con
MásMóvil para darle fibra y móvil. EXPANSION. Retrieved August 26, 2021, from
https://www.expansion.com/empresas/tecnologia/2019/02/14/5c64908b468aeb5c0b8b45cb.html.
303
Gobierno de España. Ministerio de Asuntos Económicos y Transformación Digital. (2020). Convocatoria 2020. Ayudas
para el despliegue de la banda ancha (Programa de Extensión de Banda Ancha (PEBA)). Retrieved August 26, 2021, from
https://avancedigital.mineco.gob.es/banda-ancha/ayudas/Paginas/convocatoria-2020.aspx.
304
For example, see the award of grants for broadband extension for 2020 awarded almost entirely to only two big
companies in: Gobierno de España. Ministerio de Asuntos Económicos y Transformación Digital. (2020, September
29). El Programa de Extensión de Banda Ancha ampliará la cobertura a más de 650.000 hogares y empresas y llegará
al 93% de la población. Retrieved August 26, 2021, from https://www.mineco.gob.es/
portal/site/mineco/menuitem.ac30f9268750bd56a0b0240e026041a0/?vgnextoid=8bb35487ff9d4710VgnVCM1000
001d04140aRCRD&vgnextchannel=2f0e154527515310VgnVCM1000001d04140aRCRD.
77
that there continues to be a need for new subsidies, which, if applied again in the
same manner, will perpetuate the problem.
In the EU legal framework, as exposed in the next chapter on financing democratic digitalisation,
there is no justification for public calls for tender and public contracts not to include conditions that
allow small and medium-sized enterprises (SMEs) to compete with large operators. If these
situations continue to exist, a review of the oversight mechanisms in place in relation to the use of
European public money may be necessary.
As evidence of the problematic nature of the situation described above, it is striking to note that the
fact of having a record level of fibre optic deployment does not have an impact per se on
improving the lives of its inhabitants, as Spain is ranked 6th out of the 27 Member States in
terms of most expensive Internet access 305.
Figure 18: Broadband price in Europe
Source: European Commission. (2020). Digital Economy and Society Index (DESI) 2020. Thematic
chapters. Shaping Europe's digital future. Retrieved August 26, 2021 from:
https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=67086, page 39.
Thus, it is possible see that the deployment of fibre optics is not in and of itself an indicator
that the geographical or economic digital divide has been eliminated.
305
European Commission. (2020, December 23). Mobile and fixed broadband prices in Europe at the end of 2019.
Shaping Europe’s digital future. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/
library/mobile-and-fixed-broadband-prices-europe-end-2019.
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Summary and policy recommendations - Quality access to the

Internet and geographic digital divide
Summary and policy recommendations - Quality access to the Internet and geographic
digital divide
To achieve democratic digitalisation, it is crucial to guarantee universal access to the Internet
and its functionalities according to the highest standards that can be achieved, from the point
of view of both essential services and basic communication services such as mail.
Those standards are:
Respect for Net Neutrality and continuous access.
High-quality access at optimal upload and download speeds.
Availability, or non-exclusion of anyone from supply.
Accessibility and affordability, ensuring that all individuals, irrespective of income
or other socio-economic, geographical or personal considerations, can always
obtain access on equal terms.
Interoperability and freedom of choice, and portability of services.
Access free from surveillance that respects the privacy, confidentiality and
inviolability of communications and protection of personal data, privacy and
intimacy.
In order to bridge the digital divide caused by difficulties in accessing Internet connectivity for
geographical reasons, it can be concluded that the necessary financing conditions are in place
to ensure that the connection provides quicker access wherever there is housing or economic
activity, in the same way as for water or electricity services, but several measures should be taken
to correct the current inertias.
In a context of market failures, one cannot expect the private sector alone to solve the problem
of the geographical digital divide. To achieve the goal, regulation and public action should be
oriented towards resolving failures, avoiding the consolidation of dominant positions and
ensuring that state aid instruments actually serve their purpose, such as ensuring Net Neutrality,
avoiding overbuilding and stimulating infrastructure sharing, removing barriers to entry and
focusing on the last mile.
Measures to address the identified problems could include:
Calls for tender and public contracts more clearly aimed at deploying last-mile and
designed in small lots so that they can also be taken on by small and medium-sized
companies or even by citizens or groups involved in digitalisation initiatives, thus
favouring competitiveness in the sector, fostering alternatives and permitting
fairer prices for users. Ensuring that the market is really open for all the competent
players since in the current situation it is dominated by few big actors (see next
chapter 7). Including in tenders as a quality factor advantages for consumers to
have a proximity service that knows the situation on the ground.
Sharing of neutral infrastructure should be prioritised to reduce their

environmental footprint, avoid barriers to entry and penalise overbuilding. This
means extending the wholesale access obligation.
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Anti-competitive and speculative practices through the allocation of funds and

subsidies should be proportionately sanctioned. Any subsidised infrastructure
should be made available to any operator without discrimination.
In the middle mile, the emphasis should be on developing regulations, systems for
affordability and policies that improve the efficiency of existing infrastructure and
remove barriers to entry. In addition, the under-maintenance of infrastructure
should be proportionately sanctioned.
Subsidies for infrastructure construction almost always go to telephone

companies. Subsidies to actors such as municipalities, even for small local units,
should focus on the deployment of last-mile networks (to end users) where they
do not exist, avoiding duplication, and not only on providing connections in public
places, as is the case with the WiFi4EU policy 306.
In public pricing or regulated pricing and rates, this should be done avoiding the
impact of distance-indexing. Prices and tax charges should be proportionate to the
number of final connections, or they should even be smaller in remote or sparsely
populated areas in order to encourage their development.
Considering that the major undertakings in the sector are often taken out by both
operators and service providers at the same time, a scenario that can easily lead to
conflicts of interest and facilitates the creation of situations of discrimination or
undue prioritisation that ultimately affect Net Neutrality, consideration should be
given to avoid it.
Oversight and proportionate sanctions to ISPs not delivering the speeds

advertised; captive, poorly managed or poorly used infrastructures; conflict of
interest between persons in charge of designing the tenders and awarded
companies.
306
European Commission. (n.d.). Wifi4EU Free Wifi for Europeans. WiFi4EU Portal. Retrieved August 26, 2021, from
https://wifi4eu.ec.europa.eu/#/home.
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7. Sustainability of sovereign and democratic digitalisation.

Anti-monopolistic and investment policies that reach SMEs.
Enforcement of the European Directives for the
democratisation of the right to enterprise.
In order to foster the redressment of the economy post-Covid and the legitimate right for EU
inhabitants to conduct business 307, this report proposes to consider democratic digitalisation as
defined as a field in which to deploy strategies for investment. Those strategies should include areas
related to the everyday digital tools needed by EU citizens and consider investment in the direction
of the Actions/Prototypes presented, namely everyday tools to intercommunicate, operate and
browse in the digital sphere.
On the other hand, in each of the fields explored in this report, the analysis of the current situation
leads to the conclusion that existing policies, more targeted at macro future plans 308, are not
succeeding in really financing the needs of the everyday-life digital innovation and development.
There can be no real-time digital transformation without distributing resources involving the
available skilled SMEs and even individual digital talent in te digital development for everyday use
in society. In the worst case scenario, it is possible to go back to a ‘digital Middle Ages’ of great digital
poverty and large giants that deplete resources. In this respect, the responsibility of the institutions
in designing public tenders and other resources is immense.
The next chapter will look at the opportunities to reverse the negative elements of the current
situation.
FLOSS (Free/Libre Open-Source Software) as a means for

return on public investment in democratic digitalisation
The free/libre open-source software (FLOSS) could be at the core of what could be considered the
response for a sovereign, democratic digitalisation of Europe as defined in this report. Mainly for
two reasons:
Firstly, because the source code is auditable in a distributed manner: it provides a
public way of knowing what is actually happening with settings, data and
contents, which protocols are applied to it in algorithmic governance, etc. and it
intrinsically increases demo-cracy in digitalisation. When talking about auditable
and interoperable sovereign infrastructure, open-source software allows these
conditions to be met by default.
Secondly, because the accessibility of the source code allows any kind of player to
use it to innovate, and to improve it. In short, it is a vehicle for the redistribution of
opportunities309 that can operate at a capillary level, diametrically opposed to
307
Article 16 (“Freedom to conduct a business”) of the Charter of Fundamental Rights of the European Union. Retrieved
August 26, 2021 from https://www.europarl.europa.eu/charter/pdf/text_en.pdf.
308
See annexed Factsheet 2: Annotations to the current main EU infrastructure strategies concerning digital sovereignty.
309
Blind, K., Böhm, M., Grzegorzewska, P., Katz, A., Muto, S., Pätsch, S., Schubert, T. (2021, September 6). Study about the
impact of open-source software and hardware on technological independence, competitiveness and innovation in
the EU economy. Shaping Europe’s digital future. European Commission. Retrieved September 26, 2021 from
https://digital-strategy.ec.europa.eu/en/library/study-about-impact-open-source-software-and-hardware-
technological-independence-competitiveness-and.
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monopolistic perspectives. In particular, when it comes to public investment in

digital, it guarantees maximum social return.
FLOSS is close to the essence of public service, because the source code is visible, open and can
be used by others. It is then a good use of public money, one that promotes freedom of choice and
avoids getting ‘locked in’. It makes it easy to use and reuse software solutions, and also allows the
pooling of efforts to create valuable cross-border services that are interoperable, and increase
efficiency. It is easy and efficient to add features to FLOSS, which can be freely shared with anyone,
for any purpose.
The inclusion and promotion of (FL)OSS by the European institutions has now been affirmed 310, but
needs consolidation specially within the Member States’ policies, where in many cases attention had
been paid almost exclusively to proprietary solutions, often from Big Tech companies only311. This
created a serious comparative disadvantage for open/free solutions to enjoy opportunities and to
grow and improve, and a serious monopolistic situation, with large-scale captivity of users, both
individuals and institutions 312, and a waste of public money due to the duplication of investments
for the same solutions without the possibility of interoperability and portability.
Free/Libre Open-Source Software (FLOSS) products and services optimise the return from public
resources by permitting distributed opportunities for maintenance and updates to the code.
For solutions to be stable and decisive, institutions need, though their choices in public
procurements, to get involved in a virtuous circle that reverses the current trend and prevents
further strengthening of the existing monopolies:
Institutions can improve the FLOSS code created by companies and private
individuals, adding value and channelling resources into them, and thereby
contributing to making common accessible goods and services that are
continuously evolving.
At the same time, institutions harness the knowledge available (the preexisting
source code) to make their structure more democratic, based on open data, open
standards, open science and innovation, with fewer resources in the long term.
In turn, this makes it possible to create services that can be supplied by all sorts of
individuals, microenterprises and Small and Medium-sized Enterprises, since they
can offer services related to code accessible to them and to all.
As said earlier, in the current post-Covid context where reactivation of the economy for all EU
citizens is needed, this virtuous circle can be applied to a democratic digitalisation of Europe with
strategies that invest in the creation of everyday essential digital infrastructure such as the one
described in the Actions/Prototypes, with human digital rights as the raw core material for their
design.
310
European Commission. (2020, October 21). Communication to the Commission on Open-source software strategy
2020-2023. Think Open. Retrieved August 26, 2021 from https://ec.europa.eu/info/sites/default/files/
en_ec_open_source_strategy_2020-2023.pdf. For more information see Factsheet 6 on EU position on open-source
software.
311
Investigate Europe. (2017, June). Europe’s dire dependency on Microsoft. Retrieved August 26, 2021 from
https://www.investigate-europe.eu/en/2017/europes-dire-dependency-on-microsoft/.
312
"Almost 100% of operating systems installed are Microsoft Windows, the office suite is Microsoft Office, there are no
available alternatives and users are not able to use other software even if they would like to." KPMG (2020, February).
Study on open-source software governance at the European Commission. European Commission. PDF ISBN 978-92-
76-10536-7doi: 10.2799/755940NO-02-20-079-EN-N. Retrieved August 26, 2021 from
https://op.europa.eu/en/publication-detail/-/publication/1aa67278-5464-11ea-aece-01aa75ed71a1, page 75.
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This would stimulate the emergence of new companies, serving the creation and long-term
maintenance of digital tools and protocols that have human rights at their core, and are
interoperable, both at the international and local level.
Action/Prototype 1 for education and administration, which is the case study and starting point of
this report, embraces these political priorities by starting from existing source code, openly
improving it via public investment and creating job opportunities. But through this experience it
was possible to identify the fact that the proposed virtuous circle comes into conflict with a
public procurement system that does not fully allow the agility and distribution of digital co-
creation. This serious problem has become particularly evident in the pandemic.
Current public procurement deployment at odds with the

agility of the digital age in general, and with the opportunities for
distributed entrepreneurship offered by FLOSS, in particular
In the search to identify the reasons of the above-mentioned problem, the conclusion has been
reached that it is not a problem of regulation, but a problem of enforcement. As will be exposed in
the following section, with the conditions for wider distribution of opportunities, governing parties
and institutions end up choosing mainly Big Tech and other companies with a dominant position to
undertake public contracts, despite the principle the Regulation wants to promote.
7.2.1. European procurement Directives

The current European regulatory framework for public procurement focuses on the need to tailor
public procurement to the needs of small and medium-sized enterprises (SMEs). Specifically, the
2014 Directives 313, 314, 315 set out the basic criteria on which subsequent legislation is based. Although
Directive 2014/23/EU refers to works and services concessions, Directive 2014/24/EU 316 incorporates
very explicit guidelines and recommendations to adapt public procurement to the needs of SMEs.
It considers this in several of its recitals 317. Of particular interest is recital 78 ("Public procurement
should be adapted to the needs of SMEs"...), which introduces a substantial change in the notion of
the splitting of contracts, establishing as a general rule that public procurement will be split into
lots and not doing so should be very well justified. Each lot operates as a separate contract, each
one with its own budget, different technical and economic solvency requirements, different
requirements for a definitive guarantee, etc. Tendering using lots is an essential measure to facilitate
313
Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession
contracts. Retrieved August 26, 2021 from https://eur-lex.europa.eu/legal-content/EN/TXT/
?uri=uriserv%3AOJ.L_.2014.094.01.0001.01.ENG.
314
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and
repealing Directive 2004/18/EC. Retrieved August 26, 2021 from https://eur-lex.europa.eu/legal-content/EN/TXT/
?uri=CELEX%3A02014L0024-20200101.
315
Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities
operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC. Retrieved
August 26, 2021 from https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32014L0025.
316
Furthermore, in some countries there are laws such as the Spanish Law No 9/2017 (Ley 9/2017, de 8 de noviembre, de
Contratos del Sector Público, por la que se transponen al ordenamiento jurídico español las Directivas del Parlamento
Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de 2014. Retrieved August 26, 2021 from
https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902) that eliminate solvency criteria specifically for start-up
companies.
317
Recitals 2, 59, 66, 78, Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on
public procurement and repealing Directive 2004/18/EC. Retrieved August 26, 2021 from https://eur-lex.europa.eu/
legal-content/EN/TXT/?uri=CELEX%3A02014L0024-20200101.
83
affordable access to public procurement for SMEs, as they increase competition and achieve greater
efficiency due to the degree of specialisation of SMEs.
In short, there is a European regulatory framework that explicitly calls for public procurement
to be adapted to the needs of small and medium-sized enterprises, which would contribute,
on the one hand, to expanding competition in public tenders, thus redistributing public
resources and discouraging monopolies.
7.2.2. Public Procurement in Member States - Spain as a case study

Starting from the framework created by the European public procurement directives and the
specific guidelines provided for participation of small and medium-sized enterprises (SMEs), the
Spanish regulatory framework governing public procurement has been analysed.
Organised civil society, entrepreneurial talent and research —even more so during the COVID-19
pandemic— often encounter major obstacles when trying to contribute their expertise to public
policy, and to help such policies to be transformative and timely responses to societal demands.
Furthermore, public procurement procedure is characterised by considerable slow bureaucracy that
is not always fully justified, slow payments, and a certain lack of coordination and publicity that
make it very difficult to understand public procurement and to take part in it.
Since, as previously exposed, it is not a problem of the EU Directives, the difficulty to conceal public
procurement with the capacities of the SMEs and local talent is it than a problem of the Spanish
legislation or of its enforcement?
As has been demonstrated by the CIVIO Foundation 318 in its exhaustive investigation into public
works contracts published in 2016, in Spain, 7 of every 10 euros in Government contracts were
awarded to the same 10 companies, which represent only 0.01 of the country’s business resources.
Spain transposed the European directives in 2017, almost two years late (following a complaint by
the European Commission 319). The law 9/2017 on public sector contracts 320 entered into force in
March 2018. One of its framework criteria is free competition, which is one of the quality indicators
for public procurement. Moreover, as indicated by various organisations, including the Spanish
Competition Regulator (Comisión Nacional del Mercado y la Competencia, CNMC), there is a link
between greater competition and less fraud.
However, even after the above-mentioned texts were transposed, too often it is only a few
large companies that bid for and are awarded contracts in public procurement procedures.
This situation is not unique to Spain 321; on the contrary, it is quite common in the EU.
318
CIVIO. (2016, November 15). ¿Quién cobra la obra? Una investigación de Civio la contratación de obra pública en España.
Retrieved August 26, 2021, from https://civio.es/novedades/2016/11/15/quien-cobra-la-obra-una-investigacion-de-
civio-sobre-contratos-de-obra-publica-en-espana/.
319
European Commission. (2017, December 7). Public procurement: Commission refers 4 Member States to Court of Justice
and opens a new case [Press release]. Retrieved August 26, 2021, from
https://ec.europa.eu/commission/presscorner/detail/FI/IP_17_4771.
320
Law 9/2017, of 8 November, on Public Sector Contracts, transposing into Spanish law the Directives of the European
Parliament and of the Council 2014/23/EU and 2014/24/EU, of 26 February 2014. Retrieved August 26, 2021, from
https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902.
321
European Commission (n.d.). Public procurement. Single Market Scoreboard. Retrieved August 26, 2021, from
https://ec.europa.eu/internal_market/scoreboard/performance_per_policy_area/public_procurement/index_en.htm.
84
Figure 19: Tenders awarded to SMEs in the EU
Source: European Commission. (2020). Public Procurement. Reporting period: 01/2019 – 12/2019.
Single Market Scoreboard. Retrieved August 26, 2021 from
https://ec.europa.eu/internal_market/scoreboard/performance_per_policy_area/public_procurement/
index_en.htm
Figure 20: Tenders divided into lots in the EU
index_en.htm
According to the 2019 data reported by the EC’s Single Market Score Board, a large majority
of EU countries do not achieve a level of 50% of public procurement for SMEs.
Following the Directives, the Spanish law 322 introduced innovations to open up public procurement
to small and medium-sized enterprises. The norm establishes in its object and purpose 323 that in all
public procurement, social, environmental and innovation criteria will be incorporated in a
322
Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al ordenamiento jurídico
español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de 2014.
Retrieved August 26, 2021 from https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902.
323
Article 1.3), Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al ordenamiento
jurídico español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de
2014. Retrieved August 26, 2021 from https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902.
85
transversal and mandatory way and will facilitate access to public contracting for SMEs and social
economy companies. The same is established as an objective of the National Public Procurement
Strategy 324.
There are some points to be noted in favour of the engagement of SMES and digital talent namely
the introduction of :
The division into lots;
The establishment of a maximum payment period, a fair % of subcontracting;
flexibility in solvency requirements;
Higher standards of transparency;
Qualitative criteria related to innovation that opens up opportunities to
discourage artificially low prices or the generation of captive customers and
obsolescent services and to encourage the use of OS and its improvement.
This last one been particularly important: The criteria for awarding contracts establish the best value
for money on the basis of economic but also qualitative criteria.
This means that the criterion of lower costs that could encourage dumping on the one hand and, to
offset this, the generation of captive customers for easily obsolescent services (flagrant in the case
of digital services) on the other, is no longer a priority. The qualitative social, environmental and
innovation criteria enable longer-term options with the opposite result.
This is particularly relevant if one aims to quickly activate as much new talent as possible to generate
public source code: This approach requires a significant initial investment in human talent, but
generates a much lower-maintenance source code, as it allows for the development of ventures that
use and contribute to maintaining the source code on a fractal basis.
However, this is not yet happening. In many cases, digital tenders are awarded to large corporations
or companies that artificially lower costs in order to guarantee exclusive maintenance and a very
long dependence by administrations. These administrations, having paid for proprietary source
code, are then forced to repeat the initial investment every time they want to change provider and
introduce new ones. Mechanisms to avoid abnormally low bids which ought to correct this flaw do
not work, and clarity and usability are not applied in the publication of public procurement and
prices. Moreover, these dynamics generate digital obsolescence as there is no incentive to upgrade
and maintenance cannot be distributed. In Spanish there is a saying used to describe this kind of
approach: pan para hoy, hambre para mañana ["Feast today, famine tomorrow"].
More details on those mechanisms to improve the participation of SMEs in public tenders
in annexed Factsheet 7: Aspects related to EU strategies on investment for democratic
digitalisation (2).
In short, effective application of these criteria in public procurement processes would mean not only
complying with European Directives but also seeing public procurement as a socially efficient
mechanism in the distribution of public funds.
324
Article 334.2.f), Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al
ordenamiento jurídico español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de
26 de febrero de 2014. Retrieved August 26, 2021 from https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902.
86
However, the Independent Office for Regulation and Oversight of Procurement (OIReScon) stated
that : ‘social and innovation criteria are still not adequately used, if they are used at all, in admission
conditions, award criteria and special conditions for performance, with non-compliance rates
between 25% and 33%, thus missing the opportunity to benefit from the improvements that their
use would bring to social, environmental and innovation policies" 325 and ‘The detection of inertia
and inappropriateness in relation to the purpose of the contract of the solvency criteria and the
award criteria affect competition in the tendering process and access by SMEs 326.
Moreover, the principle of publicity and transparency is also not being observed.
As regards lots, as repeatedly highlights by the OIReScon, it is still not possible to obtain information
on the justification for the non-existence of lots as open data, as established in Article 99.3 327, 328.
Indeed, the guidance on Public Procurement and Competition published by the CNMC 329 warns of
the proliferation of procedures that limit competition’.
There is also a paradox: public tendering is essential to avoid corruption. But the current type of
monolithic procurement does not give the possibility of contracting with ‘inventors’ and
empowering them, groups or micro-enterprises that have a unique solution (which is very common,
even more so in the digital environment), alleging with experienced reasons that excessive use of
lots could favour illegal fragmentation of procurements. But, exceeding in this precaution can lead
to impede smooth access to innovation to more distributed stakeholders, which ends up redirecting
economic flows to the same players, including those that could have been involved in corruption330.
According to the data of the annual supervisory report (IAS 2020) 331:
The State public sector is the area with the lowest percentage weight of ‘lot
division’ (9.23%), while the local public sector is positioned at an intermediate
325
Independent Office for Regulation and Oversight of Procurement (OIReScon). (2020, December 17). Informe anual de
actuaciones 2020. Retrieved August 26, 2021, from https://www.hacienda.gob.es/es-ES/RSC/Paginas/
OIReScon/informes-anuales-actuaciones.aspx. The OIReScon is an independent body tasked with regulation and
oversight of public procurement created by Law No 9/2017, and its mission includes preventing fraud and corruption.
However, not only does this body not have sufficient resources to carry out its function, but the Council of Europe has
also drawn Spain’s attention to the fact that this ‘office is not being an effective body in carrying out its own objectives …
it is far from having a prominent position, which could undermine its role as a supervisory authority in relation to other
institutions and bodies’. Regarding its independence, it is worth noting that its current president has held political
office in previous Government.
326
Independent Office for Regulation and Oversight of Procurement (OIReScon). (n.d.). Informe anual de actuaciones
2019. Retrieved August 26, 2021, from https://www.hacienda.gob.es/es-ES/RSC/Paginas/OIReScon/informes-anuales-
actuaciones.aspx.
327
actuaciones 2020. Retrieved August 26, 2021, from https://www.hacienda.gob.es/es-ES/RSC/Paginas/OIReScon/
informes-anuales-actuaciones.aspx.
328
329
CNMC. (2020, December 16). G-2019-02. Guía sobre contratación pública y competencia. Fase 1: La planificación de la
contratación pública. Retrieved August 26, 2021, from https://www.cnmc.es/sites/default/files/3334635_3.pdf.
330
Observatorio de Responsabilidad Social Corporativa. (2021, June 3). La lucha contra la corrupción en las empresas del
IBEX 35: Brecha entre buenas intenciones y deficiente información sobre su gestión. Retrieved August 26, 2021 from
https://observatoriorsc.org/empresas-ibex-35-lucha-corrupcion_buenas_intenciones-deficiente-informacion/.
331
actuaciones 2020. Retrieved August 26, 2021, from https://www.hacienda.gob.es/es-ES/RSC/Paginas/OIReScon/
informes-anuales-actuaciones.aspx.
87
point (16.34%) and it is the public sector in the Autonomous Communities where
tenders with lots have a greater weight, by financial amount (30.32%).
Similarly, there was a significant reduction in the average number of tenderers
bidding for contracts in 2019 (3.81) compared to those bidding in 2018 (5.88). The
reduction in open procedures is particularly striking, falling to a mean number of
4.30 bidders in 2019 from a mean value of 7.93 in 2018. These data show that in
2019 there was a substantial reduction in bidding compared to 2018, both for
service contracts (which fell from 5.97 to 3.21 bidders on average) and for supply
contracts (a fall from 5.76 to 3.21 bidders on average).
In addition, the percentage presence of a single bidder in the award amount for
procurement procedures increased significantly in 2019. In Spain there are some
mechanisms for contracting services that require innovation, such as ‘innovative
public procurement’ and ‘the innovation partnership’ 332, but they are used very
little and have very long timelines.
The scenario that just described clashes with the European Directives and their transposition into
Spanish Law.
The conclusion is that the Law is consistent to permit an higher participation of SMEs
and digital talent in the development of a democratic digitalisation, but there are still
very few Public Administrations properly enforcing it. Again an enforcement
problem.
The European Commission’s public procurement indicators (Single Market Scoreboard – Public
procurement, 2019 data) 333 among others show many other countries in a similar situation to Spain
such as Italy, Austria, Portugal, Malta, Czech Republic, Greece, Cyprus, Romania and Slovenia, and
still others are in sub-optimal situations 334.
332
Guía de contratación pública innovadora. Barcelona City Council. Retrieved August 26, 2021, from
https://www.barcelona.cat/digitalstandards/es/innovative-procurement/0.1/.
333
European Commission (n.d.). Public procurement. Single Market Scoreboard. Retrieved August 26, 2021, from
https://ec.europa.eu/internal_market/scoreboard/performance_per_policy_area/public_procurement/index_en.htm.
334
European Court of Auditors. (2015). Efforts to address problems with public procurement in EU cohesion expenditure
should be intensified. SBN 978-92-872-2849-9 ISSN 1977-5679 doi:10.2865/6884 QJ-AB-15-012-EN-N. Retrieved
August 26, 2021, from https://www.eca.europa.eu/Lists/ECADocuments/SR15_10/SR_PROCUREMENT_EN.pdf.
88
Figure 21: Public procurement overall performance in the EU
index_en.htm
The local economy of micro and small enterprises is de facto not allowed to take part
in the digital revolution because the tenders are unjustifiably huge and unaffordable
for everyone apart from large companies. It is a vicious cycle: large companies win the
procurements because the open-source sector cannot cope with large deployments.
The open-source sector cannot cope with large deployments because it is not allowed
to improve and grow as there are no opportunities for it.
This makes it very difficult to enforce the approaches the EU would like to introduce both in relation
to the prosperity of SMEs and in terms of the proliferation of FLOSS or OSS-based ventures in
particular.
89
Figure 22: Lack of open-source talent
Source: Perlow, J., Brown, D., Carter, H., Seepersad, C. (2021, September).The 2021 Open-source Jobs
Report: 9th Annual Report on Critical Skills, Hiring Trends and Education. The Linux Foundation.
Retrieved September 26, 2021 from https://www.linuxfoundation.org/resources/publications/open-
source-jobs-report-2021.
While, on the one hand, governments are asking citizens to buy locally in order to reinvigorate
the economy, many are not setting an example and are continuing to award tenders only to
large and/or multinational companies. This generates a monopolistic tendency that neither
contributes to the fair distribution of public funds nor to incorporating all the needed talent. It is not
a discussion on market freedom the development of an agile economy appropriate to the idea of
co-creation. As an example, a society in which everyone can contribute to improving the protection
of the planet is hardly compatible with supermarkets being considered as basic necessities, but not
food shops or self-supply vegetable gardens 335.
Similarly, in digitalisation, it is possible to envisage a decentralised model in which everyone with
the right competencies can contribute. To achieve this, it is essential for governments to proactively
promote this model, starting by also adopting their own proximity - and cosmopolitan - purchasing
policies.
The democratic innovation that digital resources enable could be a key source of public investment
to drive the rebirth of the economy through comprehensive public procurement plans to transform
governance structures into structures with human rights at their core: from the roll-out of access, to
secure clouds and interpersonal communication that respect human rights and effective judicial
protection, to open and auditable source code for digitalisation platforms, all of which could
generate entrepreneurship.
The free market is said to defend business diversity and competition ahead of large conglomerates
and oligopolistic companies. Reality demonstrates that something is failing and needs to be
corrected urgently.
335
García Drake, A. (2020, April 23). Por qué ir al supermercado sí pero atender el huerto en un pueblo no. ElDiario.es.
Retrieved August 26, 2021, from https://www.eldiario.es/historias-del-coronavirus/alcaldesa-pequeno-montana-
tiempos-coronavirus_132_5877194.html.
90
Inspiring anecdote
There is an interesting experience in how the public tender paths promoted by the European Directives
could (should) be further deployed, to allow the agile collaborative work typical of the networked digital
philosophy. In other words, a type of public procurement that can live up to the challenges of our times.
This is WMC / Gray's Anticorruption Hackathon Známkamaráda in the Czech Republic 336, 337, 338, 339, 340, 341. In
his own words:
"(...) When software company X [Name omitted by the editor] was awarded a contract for €16 million to
build an e-commerce platform without a formal bid, something needed to be done. By tapping into the
highly motivated talents of the public, we developed a hackathon which brought coders, programmers,
and developers together to build the e-commerce platform themselves and highlight the injustice of the
contract. And to highlight just how ridiculous the contract that they tried to pass was, we developed a
free and modern solution in just 48 hours(...)".
In fact, the result achieved in such a short time was not used, but a regular procedure of public tender was
put in place and the requirement changed to find one that was more digital-rights friendly.
The above case is about a not-for-profit experience, but it can be extrapolated to paid work. It can
be distributed in a capillary way, taking advantage of the living force of digital creation. Reality
allows it. Can institutions adapt to this reality fast enough? The legal framework already exists —
innovative by-lot procurement—; what is lacking in some cases is political will.
336
WMC Grey. (2020, May 21). Hackathon Známkamaráda campaign gave people hacktivism [VIDEO]. Youtube. Retrieved
August 26, 2021 from https://www.youtube.com/watch?v=dHKeTN9tRY8.
337
Bartoníček, R., Klézl, T. (2020, February). Utajená část zakázky na dálniční známky: Kamery měly fotit i posádky aut.
Aktuálne.cz. Retrieved August 26, 2021 from https://zpravy.aktualne.cz/domaci/utajena-cast-zakazky-na-dalnicni-
znamky-kamery-mely-fotit/r~7d1c0aac466411ea84c6ac1f6b220ee8/.
338
iROZHLAS. (2020, March 4). Bezpečnostní informační služba, Avast a Pražská energetika dostaly anticenu Velký bratr.
Retrieved August 26, 2021 from https://www.irozhlas.cz/veda-technologie/technologie/avast-prazska-energetika-
bezpecnostni-informacni-sluzba_2003041316_pj.
339
iROZHLAS. (2020, April 16). Z hackathonu na dálniční známky stát nic nevyužije. ‚Muselo by se to celé předělat,‘ říká
organizátor. Retrieved August 26, 2021 from https://www.irozhlas.cz/zpravy-domov/hackhaton-eshop-dalnicni-
znamky-elektronicke-znamky-ministerstvo-dopravy_2004161213_ban.
340
Voboril, J. Executive Director of IuRe. (2020, March 26). Otevřený dopis BIS-Reakce na ocenění Big Brother Awards.
Iuridicum Remedium (IuRe). Retrieved August 26, 2021 from https://iure.org/d/15/otevreny-dopis-bis-reakce-na-
oceneni-big-brother-awards.
341
Čambora, J. (2020, April 17). Byl hackathon zbytečný? Stát e-shop na dálniční známky nevyužije. Svetchytre. Retrieved
August 26, 2021 from https://svetchytre.cz/a/pm5Jn/byl-hackathon-zbytecny-stat-e-shop-na-dalnicni-znamky-
nevyuzije.
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7.2.3. Good practice: The case of the Municipality of Valladolid and… the
Biden Administration
Back in Spain, however, a good practice has been identified, which could serve as a benchmark. This
is the Municipality of Valladolid, which in 2020 achieved a rate of 82% of contracts awarded
to SMEs in open tendering contracts 342 and practically 100% for smallsum contracts. Of these
contracts, 50% were awarded to SMEs based in the Valladolid municipal area and 9% within the
corresponding province. This has been achieved with very little litigation —only 0.49%— and with
a success rate for appeals won by the Municipality in excess of 90%, reflecting the value of
transparency measures in generating confidence among the self-employed and small
entrepreneurs in the objectivity of the contract award processes. Today this municipality is a
benchmark of good practice in public procurement for SMEs at European level 343.
All of this arises from the path provided for in a Procurement Instruction344 that integrates and
develops the principles and possibilities laid down by the Directives and Law No 9/2017.
Getting on the right path is particularly urgent if the EU does not want to fall behind the US
again in this new reconfigured concept of digitalisation.
In July 2021, the Biden administration approved the Executive Order on competition policy, which
aims to end the era of corporate dominance in US society. This order requires all agencies of the
Federal Government to take on the problem of corporate concentration by helping to unlock the
full potential of the millions of innovators, producers and workers, while helping to protect families
from rising prices due to monopolistic practices and unequal opportunity in industries ranging from
airlines to Internet services to medical devices. This Executive Order is supported by President
Biden’s appointment of Lina Khan as chairwoman of the Federal Trade Commission and her work to
end global Covid vaccine monopolies at the World Trade Organization. The order also specifically
342
City Council of Valladolid. (2021, May 11). El 82% de los contratos del Ayuntamiento de Valladolid se adjudica a empresas
pequeñas y medianas. Retrieved August 26, 2021, from https://www.valladolid.es/es/actualidad/noticias/82-
contratos-ayuntamiento-valladolid-adjudica-empresas-pequ.
343
De Bas, P., Kruger, T., Rabuel L., Maarten de Vet, J., Vincze, M. (2020, July 1). Analysis of the SMEs' participation in public
procurement and the measures to support it. European Commission. Retrieved August 26, 2021, from
https://ec.europa.eu/docsroom/documents/42102.
344
Municipality of Valladolid. (2018, May 9). Instruction No 1/2018, intended to boost socially efficient procurement:
strategic, inclusive and sustainable in the Municipality of Valladolid and its public sector organisations. (Instrucción
1/2018, para impulsar la contratación socialmente eficiente: estratégica, íntegra y sostenible en el Ayuntamiento de
Valladolid y las entidades de su sector público). Retrieved August 26, 2021 from
https://www.valladolid.es/es/ayuntamiento/normativa/instruccion-1-2018-impulsar-contratacion-socialmente-
eficie. It establishes measures to encourage transparency; measures to facilitate participation by SMEs (including
cooperatives and self-employed) in municipal procurement such as a simplification of the technical and economic
solvency requirements and a division of contracts into lots so that small and medium-sized enterprises within a
municipality can bid for them. The municipality also has an SMEs Participation Promotion Scheme, a reserve of contracts
for innovative companies and a payment guarantee of less than 30 days; social clauses and ethical public procurement
criteria; incorporation of environmental aspects; public procurement of innovation and incentivisation of business
innovation through contracting; and quality and economic sustainability of municipal contracts. Thus, it uses the
resources invested through public contracts to support social and environmental policies, the promotion of business
innovation and the promotion of small and medium-sized enterprises, while making public procurement more
transparent, inclusive and sustainable. It covers actions at all stages of the procurement procedure, as well as actions
prior to contracting files, including basic training for local SMEs. The contract preparation phase is the essential stage
for adapting the size of contracts and thus the capacity and solvency requirements to those of small and medium-
sized enterprises. In the award phase, preference in invitations to tender for small contracts and negotiated contracts
without advertising is given to SMEs; extension in all contracts of the time limit for submitting tenders by at least five
days over the legal minimum; and the use of simple and mainly mathematically evaluated award criteria.
92
calls on the FTC to establish new rules on mass surveillance and data aggregation, a business model
also criticised by Lina Khan 345.
Risks to competition of commercial infrastructure services "for

free"
The penetration of digital services by for-profit dominant companies such as GAFAM that are
shaping the bulk of today’s digitalisation is in large part achieved thanks to the provision of free
services such as email or virtual campuses for education.
The following section provides an analysis of the problems caused by this kind of model that for
some is considered a business model that other competitors could simply copy and for others is
considered a price "dumping" that could distort the market.
"Dumping" refers to the strategy of offering goods or services below the cost of production in order
to eliminate the rest of the competitors that supposedly have fewer economic resources to bear
sustained losses. That is to say: I sell a product / service for €10 but it costs me €20. I sell it for €10
because I know that this is how I can gain all the market demand. The rest of the competitors will try
to sell it for €10, but since they have fewer economic resources, after a while, the deficit of losing
€10 per unit sold will make them close down. When everyone has closed, I will raise the price of the
product to €30 and, therefore, although consumers have first benefited from the reduction from €20
to €10, they are then held captive in a monopolised market and from now on they will have to buy
the goods or service at €30 when before they could buy it at €20.
Some authors argue that one cannot speak strictly of "dumping" in the case of email, storage and
other services offered monetarly free by some Big Tech because, despite the fact that the offer of
these services may be deficient in monetary terms (when they are offered free of charge, it is
obvious), they consider that the valuable return is that of obtaining a large amount of data. That is,
if added monetary return (0) + value obtained from the data. It is not provable that this return is less
than the cost of providing the service.
7.3.1. Background
The economy is increasingly characterised by the importance of data and information in the creation
of economic value 346. Indeed, the accumulation of data combined with the ability to process and
interpret them makes it possible, among other things, to:
Understand and anticipate demand for products and services, providing
improvement in management and reduction of costs, detection of opportunities
and, where appropriate, establishment of dynamic pricing.
Customise products and services.
Evolve services through artificial intelligence.
Another factor of particular relevance in terms of competition is the multi-purpose nature of the
data (they are a useful asset in multiple markets) and their complementarity (cross-referencing
data with other data adds even more value to the original dataset). Thus, unlike traditional markets,
345
White House (2021d, July 9). Executive Order on Promoting Competition in the American Economy. Presidential
actions. Retrieved August 26, 2021, from https://www.whitehouse.gov/briefing-room/presidential-
actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
346
See table on the average elapsed time between key algorithm proposals and corresponding advances in relation to
the datasets collection in Space machine. (2016, March 31). Datasets over algorithms. Retrieved August 26, 2021 from
http://www.spacemachine.net/views/2016/3/datasets-over-algorithms.
93
digital markets not only benefit from almost infinite economies of scale —it costs almost the same
to provide a song in streaming for one user as it does for several users— but also economies of
scope, and can easily use data collected in one market to provide a service in another market.
The value to corporations of accumulating data is necessary to explain the proliferation of
services offered for ‘free’ in monetary terms. That is, companies bear the full monetary cost of
providing such services as they are able to maximise the number of their users and therefore also
the volume of data they can obtain. The cost-effectiveness of this data can be achieved in other
ways, in a multi-sided market (currently advertising, for example) or in other markets, by applying
economies of scope. In any case, in most of the cases the expected value of the data obtained
through the provision of each of these ‘free’ services is higher than the monetary cost of
providing them.
The following section describes the three main risks posed to competition by services offered free
of monetary charge by for-profit companies, and proposes concrete actions that may make it
possible to address them successfully.
The principal risks to competition are related to:
1 It being guaranteed in the public procurement;
2 ‘Unlevelling’ playing fields; and
3 Market unassailability.
7.3.2. Risk 1: competition will not be guaranteed in public procurement

The procedure to be followed and the minimum levels of publicity and competition required in
public procurement are regulated according to the amount of money that the public administration
has to potentially pay the supplier of goods and services. Thus, Directive 2014/24/EU lays down
monetary thresholds347 above which the Directive applies.
Insofar as the guarantees of publicity and competition are established mainly on the basis of the
expected economic value of the service, there is a clear risk that the services offered by a company
at zero monetary cost to a public administration might not exceed those thresholds and, therefore,
the administration could award the provision of these services without guaranteeing a
minimum level of competition and the related standards and minimum requirements in view
of the importance and magnitude of the service to be contracted, such as education or large Smart
City services (installation of sensors, information processing centres, etc.).
However, the value should be established by considering other items since a given corporation may
be interested in providing a service of a very significant magnitude in exchange not for a monetary
amount but for access to a vast range of data and information that it can make profitable by using
said data to provide other services 348.
347
Article 4, Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public
procurement and repealing Directive 2004/18/EC. Retrieved August 26, 2021 from https://eur-lex.europa.eu/legal-
348
Back in 2016, the Catalan Competition Authority published the study ‘The data economy. Challenges for competition’,
in which it pointed out that:
‘… On this basis, the “LinkNYC” project is being developed in NYC with Sidewalk labs (Google’s unit for researching
Smart Cities). It is clear that, if a company were to offer this type of service today in Spain at zero cost, from the point
of view of strict legal compliance, it could be awarded the contract through an award procedure that is not in line
with the real (non-monetary) importance of the project.
This implies an urgent need to promote a revision of public procurement regulations which, in order to guarantee
competitive tendering, take only the price factor into consideration as a cost.’
94
This should be duly justified from a human rights perspective and from a competition perspective.
Data collection should in turn be considered as a ‘price’, i.e. the level of privacy offered is part of the
parameters considered in the competition. Furthermore, should be ensured that the final award
decision takes into consideration the goods and services offered as well as the "cost" in terms of
privacy (thus awarding the contract to the company that provides the best value for money and
quality, including the level of privacy in a quantifiable manner).
In other words, it is essential to work on breaking the information asymmetry that currently exists
between service providers and users (be they public administrations themselves or end-users) in
relation to privacy and data collection and use. The fact is that, currently, businesses compete only
in relation to those aspects that are appreciable to the recipients of their goods or services. If there
is something that consumers cannot appreciate, if it is not revealed, it is to be expected that
the dynamics of competition itself, instead of encouraging a ‘race to the top’, will encourage
a ‘race to the bottom’.
7.3.3. Risk 2: ‘Unlevelling’ the playing field

Procurement regulations are not the only ones that can be described as ‘price centric’. Tax
regulations in particular are also affected by this circumstance insofar as transaction taxes take the
monetary value of the transaction as the basis for calculation, with the corresponding tax rate being
applied to that value.
This circumstance means that where two companies offer the same service, with one opting for a
business model based on obtaining a monetary margin and the other one collecting data for its own
purposes, the former will observe, ceteris paribus, that its product reaches the end consumer subject
to an additional tax.
Consequently, an exogenous factor such as tax regulation may distort the level playing field on
which economic operators should compete.
It is therefore also advisable to update the tax rules so that they are neutral for different business
models levelling the playing field between those that pursue monetary gain directly or
indirectly through data collection.
At the moment there are taxation initiatives by the OECD, the G7 or the European Commission
aimed at trying to correct this discrimination and being able to tax remote activities, even cross-
border activities, where the transaction relies on intangible assets and the value of the data.
7.3.4. Risk 3: Market unassailability

As noted, data accumulation generates a significant competitive advantage. To the point that it is
possible for companies that take advantage of data accumulation to experience a self-reinforcing
competitive advantage. They have a better service initially, they collect more data than other
competitors, with that data they can further improve their services, and so on. It is also particularly
relevant here to stress the importance of data in the breakthroughs and continuous improvement
processes, as already mentioned in point 1.
In terms of competition, this creates a dynamically compromised situation as the market becomes
unassailable, giving rise to dominant positions and therefore a situation that can remove
possibilities for competition. This is known as the ‘winner takes all’ effect.
Monetarily free services are therefore the means by which such information-gathering strategies
that generate the medium-term risk described above are implemented.
Consequently, a detailed analysis is always necessary, since a service that initially appears to be free
of charge may generate a market impact that is either short term (if data are already available) or
95
medium term (if it is a strategy to eliminate competitors or bundle services, etc.). It may reduce the
competitive strength of the markets, causing harm to consumers and users.
Finally, it should also be noted that the competition legislation itself should be updated (along with
its enforcement) in order to take proper account of the reality of the data economy, and therefore,
for example, to be particularly strict on mergers, which have a significant ability to consolidate data
silos 349. Furthermore, as authors have pointed out 350, competition analyses should also incorporate
the data protection perspective.
This is why attention has to be paid to the development of the Digital Markets Act 351 and its
enforcement in the Members States.
Summary and policy recommendations for virtuous public

procurement in democratic digitalisation
Summary and policy recommendations - Virtuous public procurement in democratic
digitalisation
In the field of investment for a democratic digitalisation in the direction proposed by the
Actions/Prototypes 1-2-3, society is not facing a problem of regulation, but a problem of
enforcement. Although the conditions for a wider distribution of opportunities are available,
governing parties and institutions end up choosing mainly Big Tech and other companies with
dominant positions to undertake procurements, despite the principle the Regulation promotes.
The key factor is for institutions to avoid giving the wrong signal to the market which is that
digitalisation can take place sacrificing small- and medium-sized enterprises (SMEs); sacrificing
innovation as valuable and distributed human capacity; and sometimes sacrificing human rights
themselves.
Institutions should set an example.
Urgent democratic digitalisation requires the mobilising of a host of new, unique and distributed
talent. This talent can generate the source code that Europe needs for its digital sovereignty and
respect for the rights of its citizens, FLOSS code that could be updated, used and maintained by
the action of a type of capillary, distributed entrepreneurship that returns public investment to
the common good.
The legal framework to support the mobilising of this talent is in place since the EU Directives
adapt public procurement to the needs of SMEs with measures such as systematically splitting
of contracts into lots and the awarding of contracts with criteria related not only to prices but
also to quality to increase competition, discourage monopolies and achieve greater efficiency
due to the degree of specialisation of SMEs.
Since what is lacking is the enforcement of the legal framework, the sanctionatory system in
place should be more efficient in sanctioning action to discourage administrations and
349
An information silo is when data get trapped in a managment system that doesn't permit to communicate with
others. Information silo. (n.d.). Retrieved August 26, 2021 from https://en.wikipedia.org/wiki/Information_silo.
350
Caffarra, C., Crawford, G., Ryan, J. (2021, April 22). ‘The antitrust orthodoxy is blind to real data harms’. VOXEU CEPR
Research-based policy analysis and commentary from leading economists. Retrieved August 26, 2021, from.
https://voxeu.org/content/antitrust-orthodoxy-blind-real-data-harms.
351
European Commission. (n.d.-d). The Digital Markets Act: ensuring fair and open digital markets. Retrieved August 26,
2021, from https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-
ensuring-fair-and-open-digital-markets_en.
96
institutions from circumventing the possibilities of law at all levels of administration in Members
States.
In the EU, the various competent authorities, from the EC down to the smallest administrative
units in each state and all the legal and administrative services, could be involved and could take
compulsory responsibility for compliance with the principles of public tender legislation. From
drafting contracting instructions for its legal and administrative services to enable the law to be
deployed in all its essence to generate a more varied and capillary entrepreneurial ecosystem,
to serve citizens and drive economic recovery; applying their own advice on proximity
purchasing; avoiding the use of obsolete, standardised and rigid specifications and unjustifiably
slow procedures, which, in light of the present analysis, are only barely legal under the applicable
law; applying the highest standards of distributed auditability for source code financed using
public money, privacy and respect for users as rights holders and not mere consumers.
Auditable software (open-source and free/libre open-source software) has another fundamental
advantage: it contributes to driving social-technological entrepreneurship because it is made
available to everyone. The reuse and publication of source code creates a circular economy as it
never starts from scratch: it uses open-source code that is improved as everyone contributes to
it and at the same time is always available.
This perspective of rationalisation, responsible use of public money and change in individual but
also (and above all) institutional consumption patterns is also a way to reduce our ecological
footprint, and establishing obligations for interoperability and data portability can contribute to
reducing monopolies in the sector, allowing other players to compete in the market, in addition
to the use of data for the general interest.
The penetration of the digital services by for-profit dominant companies such as GAFAM that
are shaping the bulk of today’s digitalisation is achieved in large part thanks to the provision of
"for free" services such as email or virtual campuses for education.
This model, widely accepted by institutions, has severe risks for competition that need to be
taken into consideration, namely risks to competition related to 1) it being guaranteed in public
procurement since these services are often accepted without guaranteeing a minimum level of
competition and the related standards and minimum requirements in view of the importance
and magnitude of the service to be contracted; 2) ‘unlevelling’ the playing field in respect to
taxation; and 3) market unassailability, the winner-takes-all effect, produced by 1) and 2).
For all these reasons, it is crucial for public investment to be linked to innovative procurement,
agility and the generation of public open-source software 352.
Strengthening public procurement as a socially efficient and sustainable strategic tool capable
of tapping into the talents of all citizens, is particularly important in terms of stimulating an
inclusive economic recovery.
The public investment necessary to revive our damaged economies should not entail
digitalisation that lacks any holistic design and that is simply a layer of technology over
structures, standards and protocols from already-obsolete analogue ages. In too many cases,
public policies and procurement relating to the digital world swing from the technosolutionism
of believing that algorithms and technology can solve everything to technophobia, declaring
that the Internet is harmful and that the population must be kept away from it. Neither approach
is right: like most technologies, right back to the wheel or fire, they should be at the service of
352
Free Sofware Foundation Europe. (n.d.). Public money. Public Source code. Retrieved August 26, 2021, from
https://publicsource code.eu/.
97
the whole of humanity. Their great usefulness should be appreciated, above all, without denying
the risks they bring too, of course.
A genuine digital transition requires a change of organisational mentality, a change in
functioning and governance based on a vision of agility through networked, distributed
leaderships that cooperate through transparent, proactivity-based links. In other words, it is a
multistakeholder governance process, a virtuous circle of cooperation between institutions,
active and organised civil society, research and academia, and the private sector. It bears
repetition that this sort of process is a conditio sine qua non for a dignified digital transition that
has the common good at its heart and lays the foundations for the democracy of the future,
meaning the digital sovereignty of all inhabitants of Europe. In that networked future, the
condition should be there for equal opportunities for everyone to conduct business, and to
cooperate in seeking individual and collective happiness on an equal but diverse footing.
If the vital problems created by the terrible COVID-19 crisis are not to result in authoritarian and
simplistic democracies, the future of democracy depends on an active and well-informed civil
society capable of taking the lead responsibly in many solutions, rather than having solutions
foisted upon it.
Accordingly, there can be neither a demo-cracy of the future nor a future for democracy if just
part of the population can access, without danger, all the opportunities and responsibilities
offered by digital.
98
ANNEXED FACTSHEETS
99
100
Factsheet 1. Brief chronological overview of the concept of

digital sovereignty in EU institutions
Related to chapter 3.
Although it may seem recent, the debate on technological sovereignty in Europe is a long-standing
one.
Even the Plan Calcul originated as a reaction to the acquisition of Bull (the sole French computer
manufacturer at the time) by the American General Electric in 1964 353 under the presidency of
Charles de Gaulle aimed at ensuring "la souveraineté technologique", the country’s independence
in computing, with public financing of R&D and education. In this context R&D institutions such as
INIA (today INRIA) were created.
At the beginning of the XXI century, European institutions, companies and citizens perceived a clear
problem: the digital sphere, depending very little on European actors, escapes EU regulation and
this produces legal uncertainty.
The relaunch of the concept in 2011 seems to be creditable to Pierre Bellanger, CEO of the SkyRock
group, defining sovereignty in the digital age as follows: “Digital sovereignty is control of our
present and destiny as manifested and guided by the use of technology and computer networks” 354.
Further between 2013–2015, the concept is strongly incorporated into the institutional discourse
on digital strategy of countries such as France and Germany. In France, it is argued that sovereignty
is the central issue in enabling the European Union to play a certain role in industrial and regulatory
strategy for the digital sphere, and that there should be local actors355. After stating that Europe has
difficulties competing with other players 356, Angela Merkel has highlighted, alongside Emmanuel
Macron, that digital sovereignty is central to accelerating digital change in the economy 357.
In June 2016, the EU’s “Global Strategy for Foreign and Security Policy” introduced the concept of
“strategic autonomy”, which, without naming digital sovereignty, called to “ensure security within
the European digital space through appropriate policies on the location of data storage and the
353
Mounier-Kuhn, Pierre. (2017, 12 April). 50e Anniversaire Du Plan Calcul. Le Monde. Retrieved August 26, 2021, from
www.lemonde.fr/blog/binaire/2017/04/12/50e-anniversaire-du-plan-calcul/.
354
Bellanger, P. (2011, 30 August). De la souveraineté en général et de la souveraineté numérique en particulier. Les Echos.
Retrieved August 26, 2021, from http://archives.lesechos.fr/archives/cercle/2011/08/30/cercle_37239.htm.
355
Collignon, H. (2014, March 11). L’Europe au secours de l’Internet : démocratiser la gouvernance de l’Internet en
s’appuyant sur une ambition politique et industrielle européenne. Retrieved August 26, 2021, from
https://www.senat.fr/basile/visio.do?id=r879587_11&idtable=r8110910_4|r857789_73|r81230_3|r864144_1|r87958
7_11|r866501_4|r815769_38|r8106971&_c=%22Breton%22&rch=gs&de=19900708&au=20210708&dp=1+an&radio
=deau&aff=sep&tri=p&off=0&afd=ppr&afd=ppl&afd=pjl&afd=cvn&isFirst=true.
356
Merkel, A. (2014, October 21). Rede von Bundeskanzlerin Merkel anlässlich des 8. Nationalen IT-Gipfels am 21. Oktober
2014. Retrieved August 26, 2021, from https://www.bundeskanzlerin.de/bkin-de/suche/rede-von-bundeskanzlerin-
merkel-anlaesslich-des-8-nationalen-it-gipfels-am-21-oktober-2014-423386.
357
Press and Information Office of the German Federal Government. (2015, October 28). Europa auf Digitalkurs bringen.
Retrieved August 26, 2021, from https://www.bundeskanzlerin.de/bkin-de/aktuelles/europa-auf-digitalkurs-bringen-
370522.
101
certification of digital products and services” 358. At the policy level the discourse began to move
from the economic to the security perspective.
In 2018, the French Strategic Review of Cyber Defence pointed out the lack of binding multilateral
agreements and of a consensus by UN States on “the international security architecture that should
govern relations between States in the digital age” 359, while French president Emmanuel Macron
clearly supported European digital sovereignty in his speech about AI at Collège de France 360.
In 2019, the dialogue on this matter between Germany and France culminated in the publication of
the Franco-German Manifesto for a European industrial policy fit for the 21st Century 361. The
Manifesto was the starting point for the Gaia-X project 362. In addition, that year, the German
Economy Minister Peter Altmaier stated that “Germany has a claim to digital sovereignty. That’s why
it’s important to us that cloud solutions are not just created in the U.S.” 363, while Ursula von der Leyen
in her statement prior to being confirmed as European Commission president, called for Europe to
achieve “technological sovereignty in some critical technology areas” 364.
From 2020, in several forums, EP President David Sassoli called for greater sovereignty in the digital
realm as related to human rights. In this perspective he proposed considering equal access to the
Internet as a pillar of European digitalisation 365, 366, 367 European Commission President Ursula von
der Leyen also contributed to the statement.
358
European External Action Service. (2016, June). A Global Strategy for the European Union’s Foreign and Security Policy.
Retrieved August 26, 2021, from https://eeas.europa.eu/topics/eu-global-strategy/17304/global-strategy-
europeanunions-foreign-and-security-policy.
359
Sécretariat Général de la Défense et de la Sécurité Nationale. (2018, February). Strategic review of cyber defence.
Retrieved August 26, 2021, from http://www.sgdsn.gouv.fr/uploads/2018/03/revue-cyber-resume-in-english.pdf.
360
Macron, E. (2018, 29 March). Discours du Président de la République sur l'intelligence artificielle #AIdorHumanity.
Retrieved August 26, 2021, from https://www.elysee.fr/emmanuel-macron/2018/03/29/discours-du-president-de-la-
republique-sur-lintelligence-artificielle.
361
Ministère de l’économie et des finances & Bundesministerium für Wirtschaft und Energie. (2019, February 19). A
Franco-German Manifesto for a European industrial policy fit for the 21stCentury. Retrieved August 26, 2021, from
https://www.gouvernement.fr/sites/default/files/locale/piece-jointe/2019/02/1043_-_a_franco-
german_manifesto_for_a_european_industrial_policy_fit_for_the_21st_century.pdf.
362
See next Factsheet 2.
363
Stolton, S. (2019, September 12). Altmaier’s cloud initiative and the pursuit of European digital sovereignty. Euractiv.
Retrieved August 26, 2021, from https://www.euractiv.com/section/data-protection/news/altmaiers-cloud-initiative-
and-the-pursuit-of-european-digital-sovereignty/.
364
Von der Leyen, U. (2019). A Union that strives for more. My agenda for Europe. Retrieved August 26, 2021, from
https://ec.europa.eu/info/sites/default/files/political-guidelines-next-commission_en_0.pdf.
365
Sassoli, D. (2020, November 18). Building a more resilient Europe in an uncertain world [Speech at the opening of the
2020 European Strategy and Policy Analysis System (ESPAS) Annual Conference “Thinking about the future”]. Brussels.
Retrieved August 26, 2021, from https://www.europarl.europa.eu/the-president/en/newsroom/sassoli-building-a-
more-resilient-europe-in-an-uncertain-world.
366
Sassoli, D., von der Leyen, U., Prodi, R., Berners-Lee, T., & Levi, S. (2020, October 28). Internet access: a new human right
[Dialogue between Parliament President David Sassoli, President of the European Commission Ursula von der Leyen,
and Professor Romano Prodi, with interventions from Sir Tim Berners-Lee and Simona Levi]. Internet access: a new
human right, Brussels. Retrieved August 26, 2021, from https://the-
president.europarl.europa.eu/en/newsroom/event-28-october-1500---Internet-access-a-new-human-right.
367
Sassoli, D. (2020a, July 19). Sassoli: “Il diritto al web sia una battaglia europea.” la Repubblica. Retrieved August 26,
2021, from https://www.repubblica.it/politica/2020/07/19/news/sassoli_il_diritto_al_web_sia_una_battaglia
_europea_-262314742/ .
102
The German government, in its official programme for its presidency of the European Union in 2020,
announced its intention “to establish digital sovereignty as a leitmotiv of European digital
policy” 368, 369.
In 2020, European Internal Market Commissioner Thierry Breton framed it as an answer to the
“technological war” waged by the US and China, resting on three pillars: computing power, control
over our data and secure connectivity 370.
Since this report’s thesis is that digital and sovereignty cannot be possible without policies aimed at
more auditable public source code, it is important to highlight that, in its October 2020 Open-Source
Plan 371, the Commission noted that “the open-source model has an impact on Europe’s digital
autonomy. It is likely to give Europe a chance to create and maintain its own independent digital
approach to the digital giants in the cloud and allow it to retain control over its processes,
information and technology” 372.
The European Commission in its presentation of the Digital Services Act and Digital Markets Act
package in 2020, associated the concept of European digital sovereignty to the digital strategy,
especially focused on AI and data. The Commission wishes the European Union to be a global model
of the digital economy 373.
In the 2020 State of the Union address, Ursula von der Leyen announced that Europe should secure
digital sovereignty with a common vision of the EU in 2030, based on clear goals and principles. The
European Council invited the Commission to present a Digital Compass by March 2021 374.
The EU institutions put digital sovereignty on the roadmap for Europe's post-pandemic recovery
and re-emphasise the need to launch initiatives to ensure the EU's strategic autonomy 375. At the
same time, discourse is growing socially in the context of the COVID pandemic and contact tracing
protocols, with the call for a European model centred on privacy and European values 376.
368
German Federal Foreign Office. (2020). Programme for Germany’s Presidency of the Council of the European Union.
Page 8. Retrieved August 26, 2021, from https://www.eu2020.de/blob/2360248/
e0312c50f910931819ab67f630d15b2f/06-30-pdf-programm-en-data.pdf.
369
Pohle, J. & Thiel, T. (2020). Digital sovereignty. Internet Policy Review, Vol. 9, Issue 4.
https://doi.org/10.14763/2020.4.1532. Retrieved August 26, 2021, from https://policyreview.info/concepts/digital-
sovereignty.
370
Breton, T. (2020, September 11). Europe: The Keys To Sovereignty. Retrieved August 26, 2021, from
https://ec.europa.eu/commission/commissioners/2019-2024/breton/announcements/europe-keys-sovereignty_en.
371
European Commission. (2020a, October 21). Open-source software strategy 2020 – 2023. Retrieved August 26, 2021,
from https://ec.europa.eu/info/departments/informatics/open-source-software-strategy_en.
372
Fermigier, S. (2021, June 23). OW2Con 2021: How public policies can contribute to the sustainability of the European
open-source ecosystem (and why they should) [Slides]. Slide 7. Speaker Deck.
https://speakerdeck.com/sfermigier/ow2con-2021-how-public-policies-can-contribute-to-the-sustainability-of-the-
european-open-source-ecosystem-and-why-they-should?slide=7.
373
European Commission. (2020b, December 15). Europe fit for the Digital Age: Commission proposes new rules for digital
platforms. Retrieved August 26, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2347.
374
European Commission. (2021, March 9). Communication from the Comission to the European Parliament, the Council,
the European Economic and Social Committee and the Committee of Regions. 2030 Digital Compass: the European
way for the Digital Decade. Page 1. Retrieved August 26, 2021, from
https://ec.europa.eu/info/sites/default/files/communication-digital-compass-2030_en.pdf.
375
Michel, C. (2021, February 3). Digital sovereignty is central to European strategic autonomy [Speech by President
Charles Michel at "Masters of digital 2021" online event]. Retrieved August 26, 2021, from
https://www.consilium.europa.eu/en/press/press-releases/2021/02/03/speech-by-president-charles-michel-at-the-
digitaleurope-masters-of-digital-online-event/.
376
eHealth Network. (2020, April). Mobile applications to support contact tracing in the EU’s fight against COVID-19.
Common EU Toolbox for Member States. Version 1.0. Retrieved August 26, 2021, from
https://ec.europa.eu/health/sites/default/files/ehealth/docs/covid-19_apps_en.pdf.
103
In March 2021, the Prime Ministers of Germany, Estonia, Denmark, and Finland addressed a letter to
the President of the European Commission, calling for an action plan for greater digital
sovereignty 377.
To be continued...
377
Merkel, A., Frederiksen, M., Marin, S., Kallas K. (2021, March 1). Letter to the President of the European Commission.
Retrieved August 26, 2021, from https://www.politico.eu/wp-content/uploads/2021/03/01/DE-DK-FI-EE-Letter-to-
COM-President-on-Digital-Sovereignty_final.pdf.
104
Factsheet 2. Annotations to the current main EU

infrastructure strategies concerning digital sovereignty
Note: This section is permanently in progress: This section cannot be exhaustive because initiatives are constantly
in the making. Some crucial ones such as the recently announced European Chips Act 378, 379, 380 or, on the contrary,
the considerations on the lack of deployment of IPv6 have been left out of this report since the goal is not to list
initiatives, but to look at a number of models in order to identify paths.
One feature to keep in mind is that many of the listed initiatives are generated with strong political
ties so that decision making is far less agile and more abstract than the constantly evolving subject
in question: digitalisation. In some cases, while analysing the initiatives, it is sometimes difficult to
discern what part represents actual substance and what represents communication efforts.
Some main infrastructural strategies

5G connectivity 381. 5G facilitates high-speed data transfer with very low latency.
This makes it strategic for developing artificial intelligence and supporting the
exponential growth of IoT, as well as many other emerging technologies. Several
initiatives cumulated over the years: from the 5G action plan in 2016 382, to the new
Digital Compass 383 objectives. The 5G Observatory is the body that monitors
market developments 384.
Comments: At the moment, Chinese Big Tech companies are the major 5G provider in
Europe. Beginning in 2020, in its Toolbox and risk assessment report for cybersecurity of
5G networks 385, the EU points out “possible interference of third states” as one of the
main security risks.
378
Ursula von der Leyen, U. (2021, September). State of the Union Address 2021. Strengthening the soul of our Union.
Retrieved September 21, 2021, from https://ec.europa.eu/info/sites/default/files/soteu_2021_address_en_0.pdf.
379
Breton, T. (2021, September 15). How a European Chips Act will put Europe back in the tech race. Retrieved September
21, 2021, from https://www.linkedin.com/pulse/how-european-chips-act-put-europe-back-tech-race-thierry-
breton/?published=t.
380
On the subject see an interesting experience on Open-source Chip. Foundation RISC-V https://riscv.org/.
381
European Commission. (n.d.). 5G. Shaping Europe’s Digital Future. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/policies/5g.
382
European Commission (2016, September 14). Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions 5g for Europe: An Action
Plan. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/library/communication-5g-europe-
action-plan-and-accompanying-staff-working-document.
383
European Commission (2021, March 9). Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions 2030 Digital Compass: the
European way for the Digital Decade. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/en/TXT/?uri=CELEX%3A52021DC0118.
384
385
NIS Cooperation Group. (2020, January). Cybersecurity of 5G networks EU Toolbox of risk mitigating measures (CG
Publication 01/2020). European Commission. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/library/cybersecurity-5g-networks-eu-toolbox-risk-mitigating-measures.
105
Member States are acting independently, which will leave some margin of manoeuvre to
external corporation providers to remain an indispensable supplier" 386.
It is sometimes worrying that, since 5G is proposed as the communication and
interconnection system of the future, there is very little mention of the aspects related to
the rights inherent to communications itself, such as the inviolability of communications.
The multiple definitions provided, such as that “5G will be a key enabler of artificial
intelligence systems, it will provide real-time data collection and analysis, it will bring the
cloud to a new dimension by enabling the distribution of computing and storage” 387 are
not often accompanied by references to the efforts being made to ensure that the
promised massive extraction and capture of data is done within a framework of data
protection and fundamental rights.
Also, 5G cannot be considered the main and only enabler of the fulfilment of the promise
of greater connectivity (see Chapter 6 on Access to Internet).
Satellite broadband 388. In January 2021, at the European Space Conference,
Breton announced plans for supporting satellite-enabled broadband for Europe.
Breton promised “the largest ever EU-level budget for space” with €13.2 billion
going to Horizon Europe, to cover a range of satellite launches 389. The satellite
constellation aims to increase the connectivity of the EU while ensuring
sovereignty.
Comments: The largest programmes for launching a constellation of thousands of
orbiting transmitters, Amazon’s Kuiper and Elon Musk’s Starlink programme, are US-
based. In the past, European sovereignty in the field was in the hands of the British
company OneWeb, which did not succeed in being economically sustainable: after
risking bankruptcy, the project, which could have been a strategic investment for
Europe 390, has been saved by the British government and the Indian fund Barthi Global.
This episode stands as a reminder for Europe 391.
Supercomputers and quantum computers392. The EuroHPC JU is a body, created in 2018,
which seeks to enable the pooling of EU and national resources in high performance
computing (HPC). In June 2021 it selected eight sites for supercomputing centres in eight
different Member States to host the new high-performance computing machines: Sofia
386
Noyan, O. (2021, May 19). EU countries keep different approaches to Huawei on 5G rollout. Euractiv. Retrieved August
26, 2021, from https://www.euractiv.com/section/digital/news/eu-countries-keep-different-approaches-to-huawei-
on-5g-rollout/.
387
388
European Comission (n.d.). Satellite broadband. Shaping Europe’s Digital Future. Retrieved August 26, 2021, from
https://digital-strategy.ec.europa.eu/en/policies/satellite-broadband.
389
Breton, T. (2021, January 12). Speech by Commissioner Thierry Breton at the 13th European Space Conference.
Retrieved August 26, 2021, from https://ec.europa.eu/commission/commissioners/2019-2024/breton/
announcements/speech-commissioner-thierry-breton-13th-european-space-conference_en.
390
Lamigeon, V. (2020, April 1). Pourquoi l’Europe doit racheter OneWeb, la constellation de satellites. Challenges.
Retrieved August 26, 2021, from https://www.challenges.fr/entreprise/aeronautique/pourquoi-l-europe-doit-
racheter-oneweb_704666.
391
Reuters. (2020, November 20). British satellite firm OneWeb emerges from bankruptcy. Reuters. Retrieved August 26,
2021, from https://www.reuters.com/article/oneweb-bankruptcy-idUSL4N2I63KF.
392
European Comission (n.d.). Advanced computing. Shaping Europe’s Digital Future. Retrieved August 26, 2021, from
https://digital-strategy.ec.europa.eu/en/policies/advanced-computing.
106
(Bulgaria), Ostrava (Czechia), Kajaani (Finland), Bologna (Italy), Bissen (Luxembourg),

Minho (Portugal), Maribor (Slovenia), and Barcelona (Spain).
The access policy of the EuroHPC initiative regulates Member States access time to
supercomputers. A time ranging from 35% to 50% of the computers' capacity will be
allocated to users coming from the scientific, industrial and public sector 393.
Quantum communication infrastructure (EUQCI) 394. At the 2019 Digital
Assembly, 7 European States (soon joined by others) signed a cooperation
agreement to develop a quantum communication infrastructure (EUQCI) across
the EU within ten years. 395 The infrastructure is aimed at guaranteeing
cybersecurity of communications across the EU. It consists of two elements: an
earth-based architecture utilising existing fibre communication networks at
national and cross-border level, and a space-based component to cover long
distances across the EU and other continents. A consortium of companies and
research institutes to study the design of the future European quantum
communication Internet network has been put in place. The consortium led by
Airbus is composed of Leonardo, Orange, PwC France and Maghreb, Telespazio (a
Leonardo and Thales 67/33 joint venture), the Consiglio Nazionale delle Ricerche
(CNR) and the Istituto Nazionale di Ricerca Metrologica (INRiM) 396.
Comments: Europe needs to catch up with the US and China, which started coordinated
efforts around quantum computing around 2014–2015.
Due to the strategic relevance of quantum communication for intelligence services, there
are some concerns existing around future transparency 397.
EC industrial alliances
Industrial alliances398 are a tool promoted by the EC that aims to facilitate cooperation and joint
action between interested partners in a field, including Member State representatives, public and
private actors, the civil society and academia. In the field of digital sovereignty, under the Recovery
Plan for Europe 399, it can be highlighted that the European Commission kick-started on 19 July 2021
393
EuroHCP. (2021). Decision Of The Governing Board Of The Eurohpc Joint Undertaking No 06/2021 On the Access Policy
to the Union’s share on the access time to the pre-exascale and petascale supercomputers. Retrieved August 26, 2021,
from https://eurohpc-ju.europa.eu/sites/default/files/2021-03/Decision%2006.2021%20-%20Access%20policy.pdf.
394
European Comission (n.d). The European Quantum Communication Infrastructure (EuroQCI) Initiative. Shaping
Europe’s Digital Future. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/european-
quantum-communication-infrastructure-euroqci.
395
European Commission. (2019, June 13). The future is quantum: EU countries plan ultra-secure communication network |
Shaping Europe’s digital future. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/news/future-
quantum-eu-countries-plan-ultra-secure-communication-network.
396
European Commission. (2019, June 13). The future is quantum: EU countries plan ultra-secure communication network |
Shaping Europe’s digital future. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/news/future-
quantum-eu-countries-plan-ultra-secure-communication-network.
397
Krause, J. (2021, February 8). The quantum threat: why we need regulation and transparency. About:Intel. European
Voices on Surveillance. Retrieved August 26, 2021, from https://aboutintel.eu/quantum-threat/.
398
European Commission. (n.d.-c). Industrial alliances. Internal Market, Industry, Entrepreneurship and SMEs - European
Commission. Retrieved August 26, 2021, from https://ec.europa.eu/growth/industry/policy/industrial-alliances_en.
399
European Commission. (n.d). Recovery plan for Europe. Retrieved August 26, 2021, from
https://ec.europa.eu/info/strategy/recovery-plan-europe_en.
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the Alliance for Processors and Semiconductor technologies and the European Alliance for Industrial
Data, Edge and Cloud 400.
Alliance on Processors and Semiconductor technologies. Related to the
planned European Chip Act 401, it aims to ensure that Europe has the capacity to
reduce its overall strategic dependencies. The plan is to double EU share in global
production by 2030 to reach 20% of world production in value 402.
European Alliance for Industrial Data, Edge and Cloud 403. The Alliance aims to
strengthen the position of EU industry in cloud and edge computing technologies
and meet the needs of EU businesses and public administrations that process
sensitive categories of data 404. On 7 May 2021, 27 CEOs of leading European
companies in cloud and edge technologies submitted to Commissioner Thierry
Breton outlines on technological priorities for investment 405, 406.
Comments: Some of the partners are also part of Gaia-X. Again, it is important to associate
strong statements on citizens' privacy and sovereignty to such sensitive projects 407, 408.
Apart from all this, there are many industrial partnerships 409 on digitalisation that are moving
forward with agendas that are more agile than those of institutions and have a strong influence
400
European Commission (2021, July 19). Digital sovereignty: Commission kick-starts alliances for Semiconductors and
industrial cloud technologies [Press release]. Alliances for Semiconductors & industrial cloud technologies. Retrieved
August 26, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/IP_21_3733.
401
Breton, T. (2021, September 15). How a European Chips Act will put Europe back in the tech race. European
Commission. Retrieved September 26, 2021, from https://ec.europa.eu/commission/commissioners/2019-
2024/breton/blog/how-european-chips-act-will-put-europe-back-tech-race_en.
402
European Commission. (n.d.-b). Alliance on Processors and Semiconductor technologies. Shaping Europe’s Digital
Future. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/alliance-processors-and-
semiconductor-technologies.
403
European Commission. (n.d.-c). European Alliance for Industrial Data, Edge and Cloud. Shaping Europe’s Digital Future.
Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/cloud-alliance.
404
European Commission. (n.d.-d). European Alliance for Industrial Data, Edge and Cloud. Internal Market, Industry,
Entrepreneurship and SMEs - European Commission. Retrieved August 26, 2021, from
https://ec.europa.eu/growth/industry/policy/european-alliance-for-industrial-data-edge-and-cloud_en.
405
European Commission. (2021b, May 6). Today the Commission receives industry technology roadmap on cloud and edge
Shaping Europe’s digital future [Press release]. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/library/today-commission-receives-industry-technology-roadmap-cloud-and-edge.
406
European Alliance for Industrial Data, Edge and Cloud. (2021a, May). European industrial technology roadmap for the
next generation cloud-edge offering. Retrieved August 26, 2021, from
https://ec.europa.eu/newsroom/repository/document/2021-
18/European_CloudEdge_Technology_Investment_Roadmap_for_publication_pMdz85DSw6nqPppq8hE9S9RbB8_
76223.pdf.
407
European Alliance for Industrial Data, Edge and Cloud. (2021b, July). Terms of Reference. European Commission.
Retrieved August 26, 2021, from https://ec.europa.eu/newsroom/repository/document/2021-
29/ToR_Alliance_Industrial_Data_Edge_Cloud_uQ0UJ94WT68sbMot4ONAf2954xc_78363.pdf.
408
European Alliance for Industrial Data, Edge and Cloud. (2021c). Declaration of the European Alliance for Industrial Data,
Edge and Cloud. European Commission. Retrieved August 26, 2021, from
https://ec.europa.eu/newsroom/repository/document/2021-
29/Declaration_Alliance_Industrial_Data_Edge_Cloud_004_1y7U86aQ03KlIeeOuQD7d3WhoM_78362.pdf.
409
As an example: Joint European Disruptive Initiative. (n.d.). The Jedi Pledge. Retrieved August 26, 2021 from
https://www.jedi.foundation/jedipledge.
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when lobbying institutions. Equally numerous, albeit less influential, are the civil society
partnerships 410.
Related initiatives
European Blockchain Services Infrastructure (EBSI) 411. It is a joint initiative from
the European Commission and the European Blockchain Partnership (EBP) 412. The
European Blockchain Services Infrastructure (EBSI) is meant to be a peer-to-peer
network of interconnected nodes running a blockchain-based services
infrastructure. It focuses on a small number of specific use cases, such as European
digital identity and trusted data sharing. Each node is meant to be run by the 27
EU countries, Norway, Liechtenstein, the European Commission and each member
of the European Blockchain Partnership (EBP). The EBP 413 is meant to deliver EU-
wide, cross-border, public, interoperable blockchain-based services.
Comments: It works using open-source technologies. Use cases so far seem to prove a
good degree of interoperability. Sometimes, as a complex structure, it can be too slow
for the field in which they are working, which is fast-changing 414.
Next Generation Internet. The NGI initiatives by the EC aim to support research
and innovation projects focusing on "Human Internet that respects the
fundamental values of privacy, participation and diversity" 415.
Comments: The cascade funding structure of the initiative allows the funding of smaller
projects that utilise the same enabling blocks, thus creating thus a rich ecosystem of
interoperable players. Some projects are overlapping. To be continued...
Infrastructures: cloud
Some 80–95% of Europeans’ data are stored in non-European companies' clouds. This affects not
only sovereignty, but the possibility to innovate and research with data. In response to this situation,
long decried by some civil society organisations, the EU is starting to take measures. In this regard,
the main project that the EU is backing is Gaia-X, though other initiatives are also being promoted.
Gaia-X 416
Born from the Franco-German Manifesto for a European industrial policy fit for the 21st Century 417,
Gaia-X was launched by French and German industrial companies. Legally a not-for-profit
organisation registered in Belgium, it is a framework initiative for compliance with the European
410
As an example: Mydata Global. (n.d.) Mydata. Retrieved August 26, 2021 from https://mydata.org/.
411
European Commission. (n.d.-e). European Blockchain Services Infrastructure. Shaping Europe’s Digital Future. Retrieved
August 26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/european-blockchain-services-infrastructure.
412
SSI Ambassador. (2020, February 2). ESSIF: The European self-sovereign identity framework. Retrieved August 26, 2021,
from https://ssi-ambassador.medium.com/essif-the-european-self-sovereign-identity-framework-4572f6875e12.
413
European Commission. (n.d.-e). European Blockchain Partnership. Shaping Europe’s Digital Future. Retrieved August
26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/blockchain-partnership.
414
Pastor, M. (2021, July 20). What is EBSI? EBSI Documentation. Retrieved August 26, 2021, from
https://ec.europa.eu/cefdigital/wiki/pages/viewpage.action?pageId=381517902.
415
European Commission. (n.d.). Next Generation Internet. Next Generation Internet Initiative by the Digital Single Market
of the European Commission. Retrieved August 26, 2021, from https://www.ngi.eu/.
416
Gaia-X. (n.d.). Gaia-X. Retrieved August 26, 2021, from https://www.gaia-x.eu/.
417
See factsheet 1 . Ministère de l’économie et des finances & Bundesministerium für Wirtschaft und Energie. (2019,
February 19). A Franco-German Manifesto for a European industrial policy fit for the 21stCentury. Retrieved August
26, 2021, from https://www.gouvernement.fr/sites/default/files/locale/piece-jointe/2019/02/1043_-_a_franco-
german_manifesto_for_a_european_industrial_policy_fit_for_the_21st_century.pdf.
109
legislation for a cloud federation and/or a data-sharing platform. Hence, it is to be seen as a

federated data infrastructure rather than a new single cloud provider. Defined as a secure and
federate data infrastructure, it was presented by the German Minister of Economic Affairs and
Energy Peter Altmaier and the French Minister of Economy Bruno Le Maire in June 2020 418.
In her state of the Union address in September 2020 Ursula von der Leyen announced that the EU
cloud will be based on Gaia-X.
What Gaia-X announces419 —the idea of federating clouds using portability and interoperability
protocols that are auditable and transparent for sovereignty and reuse of European, and
subsequently international, data in compliance with the principle of freedom to conduct business
and the right to privacy and other fundamental rights— would definitely be suitable for a sovereign
and democratic digitalisation.
However, the definition of Gaia-X is still in progress and there are many ambiguities to be clarified
to ensure that the project can really solve the problem of data sovereignty in Europe420 in the
broadest sense, with a central focus on human rights, as described in this report.
For this to happen, a number of issues still need to be resolved. From the perspective of democratic
digitalisation, the limitations that could face the model currently proposed for Gaia-X could be
regrouped as openness of code, ownership and distributed auditability; and governance model,
balance between the project partners and representation of the general interest rather than only
commercial interest. Those are some of the elements known about the project so far and here are
some of the possible issues related to them:
Gaia-X, formally created as a private, non-profit association in September 2020 by
22 companies and organisations (11 from Germany and 11 from France) under the
auspices first of France and Germany and then of the EU and now several hundred
members, will be facing the management of powerful private interests despite
formally being a non-profit association. It remains to be clarified how the many
small and medium-sized players will be able to operate on a level playing field or
whether the interests of civil society and consumers will really be considered. For
example, EU-based founding members such as OpenNebula had little visibility
during the first international summit 421. The issue of size is not a problem per se,
but monopoly is from the perspective of the EU legislation and EU values and from
the perfective of democracy. As discussed at length in this report, no monopolies,
even if they are European, but distributed and federated solutions are needed to
guarantee sovereignty. This can be difficult to achieve in a scenario dominated by
large companies that have at least a 10-year head start over others and that are
418
Gaia-X. (2020, June 4). Peter Altmaier and Bruno Le Maire present the European data infrastructure project GAIA-X [Video].
Gaia-X. Retrieved August 26, 2021, from https://www.data-infrastructure.eu/GAIAX/Redaktion/EN/Video/20200604-
GAIA-X-Ministerial-talk/20200604-ministerial-talk.html.
419
Gaia-X. (2020, June 4). Peter Altmaier and Bruno Le Maire present the European data infrastructure project GAIA-X [Video].
Gaia-X. Retrieved August 26, 2021, from https://www.data-infrastructure.eu/GAIAX/Redaktion/EN/Video/20200604-
GAIA-X-Ministerial-talk/20200604-ministerial-talk.html.
420
https://www.accessnow.org/the-future-of-data-protection-what-we-expect-in-2021.
421
Fermigier, S., & Franck, S. (2020, November 23). Gaia-X: A trojan horse for Big Tech in Europe. Euractiv. Retrieved August
26, 2021, from https://www.euractiv.com/section/digital/opinion/gaia-x-a-trojan-horse-for-big-tech-in-europe/.
110
capable of implementing plans with greater agility and override political

considerations such as digital sovereignty 422.
Moreover, some authors criticise Gaia-X for being a state-driven project that does not offer
real innovation and will have to compete for market acceptance with more established
providers423, 424.
In the current state of affairs, in which European data are found in significant
quantities on platforms belonging to non-European companies such as Amazon,
Google and Microsoft, it is therefore important for these actors to contribute to
data sharing. This is why it is understandable that EU institutions support those
actors to be somehow part of Gaia-X. However, it is somewhat delicate to suggest
that having headquarters in Europe and complying with European legislation or
indirectly by providing the infrastructure utilised by grant receivers is the solution
to ensure that these actors be able to participate in the European data sovereignty
being proposed. In order to better understand the issue some of the players in
Gaia-X should be mentioned 425, namely:
Amazon, based in Luxembourg;
Google, based in Ireland;
Huawei, based in Germany;
IBM, based in Belgium.
Without a headquarters in the EU:
Haier COSMO IoT Ecosystem Technology Co., Ltd from China;
Robot Revolution & Industrial IoT Initiative from Japan;
Vodafone from the UK;
Palantir Technologies Inc. from the United States, etc.
As an example, Palantir American is a company specialising in big data analytics. Its software
has been criticised on several occasions. A recent joint investigation by the Guardian,
Lighthouse Reports and Der Spiegel reports how Palantir works with European public
agencies (e.g. zero-cost agreements, meetings with no minutes and product-improvement
clauses) 426. The company, which is rarely cited in debates around Big Tech influence in Europe,
422
Balestrini, M. (2020, June 7). El proyecto Gaia-X busca la independencia europea en la nube. El País. Retrieved August
26, 2021, from https://elpais.com/tecnologia/2020-06-06/el-proyecto-gaia-x-busca-la-independencia-europea-en-la-
nube.html.
423
Lumma, N. (2019). Die „europäische Cloud“ ist eine Kopfgeburt, die nicht überleben wird. Gründerszene Magazin.
Retrieved August 26, 2021, from https://www.gruenderszene.de/technologie/gaia-x-europaeische-cloud-wird-
scheitern and Mahn, J. (2020). Die digitale europäische Idee. Gaia-X: Wie Europa in der Cloud unabhängig werden soll.
Magazin für Computertechnik, 14. Retrieved August 26, 2021, from https://www.heise.de/
select/ct/2020/14/2015610312088025860.
424
10.14763/2020.4.1532. Retrieved August 26, 2021, from https://policyreview.info/concepts/digital-sovereignty.
425
Gaia-X European Association for Data and Cloud AISBL. (2021, July 7). Member list. Gaia-X. Retrieved August 26, 2021,
from https://www.gaia-x.eu/sites/default/files/2021-07/Gaia-X_Member-Association_2021-07-07.pdf.
426
Howden, D., Fotiadis, A., Stavinoha, L., & Holst, B. (2021, April 2). Seeing stones: pandemic reveals Palantir’s troubling
reach in Europe. The Guardian. Retrieved August 26, 2021, from
111
is embedding its software in EU public services. This seems to be in contradiction with some
of the origins of the need for data sovereignty in the EU, for instance in COVID-19 monitoring
in the Netherlands 427. Homo Digitalis has requested that an investigation be initiated by the
Greek DPA regarding the unavailability of the contract announced by Palantir with the Greek
Government428.
Another worrying aspect is related to Gaia-X having stated that ‘Being a member of the GAIA-
X Association will not mean that any of the services of a member company will be
compliant’ 429. The reasons for this statement are understandable, but limits should be set to
protect human rights and European values to avoid non-suitable data extraction models.
These types of details are worrying in terms of the criteria that are being used to build Gaia-X.
Moreover, although for the moment they cannot be part of the steering board or of the service
portfolio, other players such as Alibaba Cloud or AWS are consortium members. Because of
the lobbying power of all the mentioned actors, Gaia-X could likely channel many EU funds
and opportunities, opening up chances for GAFAM players and replicating the problem of lack
of sovereignty and dominance and its scale.
The exploitation of data generates wealth that is reinvested in the sector. European
inferiority in this respect is damaging to European entrepreneurship and
innovation. If a real desire for sovereignty is not clearly asserted —as recently it has
begun to be considered given the need for tech players to pay taxes in the
countries where they generate profits— 430, wealth and raw materials could
continue to be supplied to projects that will extract it, but not reinvest in Europe
or for the general interest.
As mentioned, for digital sovereignty of people, companies and states, the

distributed with no tutelage auditability of the software, algorithms and protocols
is essential. Compliance with the law is not sufficient to avoid abuses.
Infrastructure should be auditable in a distributed way by design. In the
information provided by Gaia-X, the protocols generated will be open-source.
There is still a need to clarify the possible contradiction with federated services that
https://www.theguardian.com/world/2021/apr/02/seeing-stones-pandemic-reveals-palantirs-troubling-reach-in-
europe.
427
Howden, D., Fotiadis, A., Stavinoha, L., & Holst, B. (2021, April 2). Seeing stones: pandemic reveals Palantir’s troubling
reach in Europe. The Guardian. Retrieved August 26, 2021, from
https://www.theguardian.com/world/2021/apr/02/seeing-stones-pandemic-reveals-palantirs-troubling-reach-in-
europe.
428
Kakavoulis, K. (2020, December 17). Homo Digitalis requests initiation of investigation by the Greek DPA regarding
the contract between Palantir and the Greek Government. Homo Digitalis. Retrieved August 26, 2021, from
https://www.homodigitalis.gr/en/posts/9032 and https://insidestory.gr/article/covid19-i-amfilegomeni-palantir-
synergasia-elliniki-kyvernisi.
429
Gaia-X. (2021, March 29). GAIA-X accelerates with 212 new organizations joining and announces a forthcoming
compliance label [Press release]. Retrieved August 26, 2021, from https://www.data-
infrastructure.eu/GAIAX/Redaktion/EN/Downloads/gaia-press-release-march-31-
en.pdf?__blob=publicationFile&v=3.
430
Race, M. (2021, June 11). G7 tax deal: What is it and are Amazon and Facebook included? BBC News. Retrieved August
26, 2021, from https://www.bbc.com/news/business-57384352.
112
are not open-source. Moreover, the use of ‘Open-Source’ is still ambiguous in some
cases on the website (‘Services will leverage existing standards and open
technology, e.g. open-source software’ 431). It is difficult to see how the business
models of some of the members can be reconciled with the open nature of the
code. An example of a failed commitment pathway that would not be acceptable
for real auditability and sovereignty is what happened with the contact tracing app
during the COVID-19 pandemic: the promise to publish the code was fulfilled… for
only a tiny part of it 432.
A further problem that Gaia-X’s definition and development may create is a

problem of narrative that ultimately simply creates an ad-hoc framework to
normalise the current situation of non-sovereignty and lull governments into
enforcing their digitalisation within this same flawed framework, merely tweaked
by a few safeguards.
Other EU cloud initiatives

European Cloud Industrial Alliance (EUCLIDIA). From the point of view of
European digital sovereignty, one interesting initiative is EUCLIDIA, composed of
European SMEs that are active in the cloud industry where open-source and
collaboration is part of the DNA, joining efforts across industry players to develop
a new generation of services and deployments 433, 434.
"While there is a lot of talk about cloud sovereignty, current plans by governments in Europe as
part of Gaia-X still rely on US technologies by AWS, Google and Microsoft which are subject to
foreign surveillance (FISA) and tend to capture customer's value through overpricing. A
European solution for true technological independence is needed. There is an increasing
demand for an integrated approach based on cloud technologies created by SMEs in Europe
that are innovative and extremely competitive but need to be further marketed." 435
Important Project of Common European Interest (IPCEI) on Next Generation

Cloud Infrastructure and Services. In the framework of the Recovery,
Transformation and Resilience Plan. This project on the next generation of
cloud/edge services and infrastructures derived from the Declaration of 25 states
431
Gaia-X. Federation Services as core of Gaia-X. What is Gaia-X . Retrieved August 26, 2021, from https://www.gaia-
x.eu/what-is-gaia-x/federation-services.
432
Xnet. (2020). Más claridad sobre la utilidad de la inteligencia artificial (IA) y los datos contra la propagación del
#COVID19 desde la perspectiva de las libertades civiles. Retrieved August 26, 2021 from https://xnet-
x.net/es/inteligencia-artificial-datos-covid19/.
433
Euclidia. (n.d.-a). Euclidia. Retrieved August 26, 2021, from https://www.euclidia.eu/.
434
Krim, T. (2021, Juillet 14). Lettre à ceux qui veulent faire tourner la France sur l’ordinateur de quelqu’un d’autre.
Requiem pour la souveraineté numérique. Retrieved August 26, 2021, from
https://www.codeforfrance.fr/assets/ebook/cloud_14Juillet2021.pdf.
435
Euclidia. (n.d.-b). Euclidia Background. Retrieved August 26, 2021, from https://www.euclidia.eu/background/.
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on building the next generation cloud for businesses and the public sector in the
EU, or “cloud federation” 436, 437.
Currently taking part are industries supported by the governments of Belgium, France,
Germany, Hungary, Italy, Latvia, Luxembourg, the Netherlands, Poland, Slovenia and Spain. It
envisages building the next generation of a sovereign, interoperable, multi-purpose, vendor-
neutral, interconnected, distributed and scalable pan-European data processing
infrastructure. It promises to include the development and deployment of real-time (very low
latency) edge computing capabilities; the design of secure, low-power, interoperable
middleware platforms for multiple sectoral uses; and the development and deployment of
ultra-secure, real-time, low-power, intelligent cloud and edge services 438, 439, 440.
The European Cloud Initiative. As part of the package of measures for Digitalising
European industry, it promises to “unlock the power of big data for open
science” 441.
To be continued…
436
European Commission. (2020, October 15). Commission welcomes Member States’ declaration on EU cloud federation |
Shaping Europe’s digital future [Press release]. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/news/commission-welcomes-member-states-declaration-eu-cloud-federation.
437
Joint Declaration building the next generation cloud for businesses and the public sector in the EU. Done remotely on
Electronic Version in the English Language FortheInformal Video Conference of the Ministers Responsible for
Telecommunications/Digital Policy on 15 October 2020. Retrieved August 26, 2021, from
https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=70089.
438
Ministerio de Asuntos Económicos y Transformación Digital. (n.d.). Manifestación de interés para la constitución del HUB
español de GAIA-X y el establecimiento de un hub específico de datos en el sector turístico. Gobierno de España. Retrieved
August 26, 2021, from https://portal.mineco.gob.es/es-
es/ministerio/participacionpublica/consultapublica/Paginas/mdi-gaia-x.aspx.
439
Bundesministerium für Wirtschaft und Energie. (2021, May 25). IPCEI on Next Generation Cloud Infrastructure and
Services. Retrieved August 26, 2021, from https://www.bmwi.de/Redaktion/EN/Artikel/Industry/ipcei-cis.html.
440
Ministère de l’économie, des finances et de la relance. (2020, December 17). IPCEI on Next Generation Cloud
Infrastructure and Services (IPCEI-CIS) [Draft Discussion Paper]. Retrieved August 26, 2021, from
https://www.entreprises.gouv.fr/files/files/secteurs-d-activite/numerique/ressources/consultations/appel-
manifestation-interet-ipcei.pdf.
441
European Commission. (n.d.). The European Cloud Initiative. Shaping Europe’s Digital Future. Retrieved August 26,
2021, from https://ec.europa.eu/12090/20210727063626/https://ec.europa.eu/digital-single-market/en/european-
cloud-initiative.
114
Factsheet 3. Annotations to key EU regulations and

institutional strategies and policies concerning digital
sovereignty
Right to self-determination
Key EU regulations and institutional strategies and policies concerning right to self-determination:
Electronic IDentification, Authentication and trust Services Regulation
(eIDAS) 442. It entered into force in September 2014; most of its provisions have
applied since July 2016; mutual recognition of electronic identification means has
been mandatory since September 2018.
It covers digital signatures, seals, time stamps, documents, registered delivery services and
certificate services for website authentication in order to remove existing barriers to the cross-
border use of electronic identification means used in the Member States to authenticate, at
least for public services. The aim of the Regulation is to ensure that for access to cross-border
online services offered by Member States, secure electronic identification and authentication
is possible.
Comments: “Self-determination is the key to human thriving; it's also the enemy of both
dictatorships and monopolies” 443. A problematic aspect of eIDAS is infrastructure:
strategic choices are left to implementing States, jeopardising a united approach 444. The
door is open to an approach that could be contradictory to digital individual sovereignty
because the tools chosen could often be based on centralised characteristics and, for the
same reasons, even more vulnerable to cyber threats than decentralised models.
Moreover, since EU countries proceed at a different pace and with different system
choices and supervisory mechanisms, cross-border interoperability and security are at
risk. Not just citizens who lack access to the Internet and/or the digital skills to create and
442
identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:
OJ.L_.2014.257.01.0073.01.ENG.
443
Doctorow, C. (2021, February 17). Technology, Self-Determination, and the Future of the Future. Electronic Frontier
Foundation. Retrieved August 26, 2021, from https://www.eff.org/es/event/technology-self-determination-and-
future-future.
444
See, for example, recitals 12-13 of the eIDAS Regulation: Recital 12: “One of the objectives of this Regulation is to
remove existing barriers to the cross-border use of electronic identification means used in the Member States to
authenticate, for at least public services. This Regulation does not aim to intervene with regard to electronic identity
management systems and related infrastructures established in Member States. The aim of this Regulation is to
ensure that for access to cross-border online services offered by Member States, secure electronic identification and
authentication is possible.”
Recital 13: “Member States should remain free to use or to introduce means for the purposes of electronic
identification for accessing online services. They should also be able to decide whether to involve the private sector
in the provision of those means. Member States should not be obliged to notify their electronic identification schemes
to the Commission. The choice to notify the Commission of all, some or none of the electronic identification schemes
used at national level to access at least public online services or specific services is up to Member States.”
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manage an electronic ID are at risk of exclusion from public services, but in some
countries even for skilled citizens it is very complex and inefficient 445. While the focus is
on connecting public administrations, the question of how private services will leverage
the framework is still open. The recent proposal of an EU digital wallet does not address
these flaws. Moreover, besides excluding citizens without a smartphone, a wallet in the
form of a smartphone app as proposed implies putting a key sovereignty element, the
ID, under the aegis of the non-EU players dominating the smartphone market. 446
In January 2021, the EC started discussing the revision of the regulation to solve many of
those and other bugs 447, 448, and proposed a legislative text, to be discussed within the EU
institutions, in June 2021 449. Three avenues are envisioned: for strengthening eIDAS, (i)
improving mutual recognition across countries; (ii) accrediting private providers to serve
eID as trusted service; (iii) Self-Sovereign Identity (SSI) based on W3C standards, means
management solutions based on the Decentralised Identity / Self-sovereign Identity -SSI-
paradigms 450.
Also, the European self-sovereign identity framework (ESSIF), part of the European
Blockchain Service Infrastructure (EBSI), works on tackling these issues. It aims to enforce
a generic self-sovereign identity (SSI) capability, allowing users to create and control their
own identity across borders without relying on centralised authorities 451 in order to help
make institutions more efficient and facilitate economic activity flow across borders.
Some of the European Blockchain Partnership actors are working on how to:
Facilitate cross-border interaction with SSI
Make/keep national SSI projects interoperable
Integrate/align existing building blocks such as eIDAS, e-delivery, once-only with
SSI
Conceptualise and build an identity layer in the new European Blockchain Services
Infrastructure
Preserve European/democratic values in the enforcement of SSI 452
445
Xnet. (2021, July 14). Las políticas públicas de identificación digital abstraídas de la realidad. Retrieved August 26, 2021,
from https://xnet-x.net/politicas-publicas-identificacion-digital-abstraidas-realidad/.
446
Hoepman, J-H. (2021, June 14). The European Digital Identity Framework. Retrieved August 26, 2021, from
https://blog.xot.nl/2021/06/14/the-european-digital-identity-framework/index.html.
447
European Commission. (2021, January 7). Revision of the eIDAS Regulation - European Digital Identity [Slides]. Retrieved
August 26, 2021, from https://edri.org/wp-content/uploads/2021/01/POLITICO_Commission-document-on-eIDAS-
reform.pdf.
448
See for example, current approaches in the EU (public/private) in du Seuil, D. (2019). European Self Sovereign identity
framework. Slide 12. European Economic and Social Committee. Retrieved August 26, 2021, from
https://www.eesc.europa.eu/sites/default/files/files/1._panel_-_daniel_du_seuil.pdf.
449
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 910/2014 as
regards establishing a framework for a European Digital Identity. Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021PC0281.
450
European Commission. (2019, May). EIDAS supported Self-Sovereign Identity. Retrieved August 26, 2021, from:
https://ec.europa.eu/futurium/en/system/files/ged/eidas_supported_ssi_may_2019_0.pdf.
451
Doerk, A. (SSI Ambassador). (2020, February 2). ESSIF: The European self-sovereign identity framework. Retrieved August
26, 2021, from https://ssi-ambassador.medium.com/essif-the-european-self-sovereign-identity-framework-
4572f6875e12.
452
du Seuil, D. (2019). European Self Sovereign identity framework. Slide 22. European Economic and Social Committee.
Retrieved August 26, 2021, from https://www.eesc.europa.eu/sites/default/files/files/1._panel_-_daniel_du_seuil.pdf.
116
Figure 23: European Self Sovereign identity framework approach
Source: du Seuil, D. (2019). European Self Sovereign identity framework. Slide 12. European Economic
and Social Committee. Retrieved August 26, 2021, from
https://www.eesc.europa.eu/sites/default/files/files/1._panel_-_daniel_du_seuil.pdf
Data protection and privacy

Key EU regulations and institutional strategies and policies concerning data protection and privacy:
General Data Protection Regulation (GDPR) 453. It was adopted in May 2016 and
became enforceable, thus binding and applicable, in May 2018. As mentioned
before this concerns the protection of personal data both online and offline 454,
outlining seven principles: lawfulness, fairness and transparency; purpose
limitation; data minimisation; accuracy; storage limitation; integrity and
confidentiality; accountability.
Comments: For many authors such as Xnet and Access Now 455, 456, the GDPR is a
“legislative success but an enforcement failure” not serving European citizens as much
as it could because of the low level of enforcement in some Member States and in how
453
lex.europa.eu/eli/reg/2016/679/oj.
454
Article 2(1) GDPR: This Regulation applies to the processing of personal data wholly or partly by automated means
and to the processing other than by automated means of personal data which form part of a filing system or are
intended to form part of a filing system.
455
Access Now. (2021, May). Three years under the EU GDPR. An implementation progress report. Retrieved August 26, 2021,
from https://www.accessnow.org/cms/assets/uploads/2021/05/Three-Years-Under-GDPR-report.pdf.
456
The case of Spain. Xnet (2020, March 3). Privacy and Data Protection against Institutionalised Abuses: Transparency
for institutions, privacy for the people – Reforms of data policies to correct the asymmetry and lack of protection of
people before institutions and companies. Retrieved August 26, 2021, from https://xnet-x.net/en/xnet-privacy-data-
protection-institutionalised-abuses/.
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Data Protection Authorities (DPAs) utilise their power, which results in a large number of
citizens’ complaints going unaddressed.
Figure 24: The General Data Protection Regulation: Cheat Sheet.
Source: Mondschein, C.F., Monda, C. (2018, December 22). Figure 5.2. Maastricht European Centre on
Privacy and Cybersecurity (ECPC), Faculty of Law, Maastricht University. Retrieved August 26, 2021,
from https://link.springer.com/chapter/10.1007/978-3-319-99713-1_5 and
https://media.springernature.com/original/springer-static/image/chp%3A10.1007%2F978-3-319-
99713-1_5/MediaObjects/463627_1_En_5_Fig2_HTML.png.
The E-privacy and Electronic Communications Directive (ePD) 457. In force since
2002, amended in 2009 458. Soon to be replaced by the e-privacy Regulation 459. The
ePD sets out rules for providers of electronic communication services, such as
telecoms companies and Internet Service Providers.
457
personal data and the protection of privacy in the electronic communications sector (Directive on privacy and
electronic communications). Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
458
459
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These are the main requirements of the Directive:

Confidentiality of communications: EU Member States must ensure the
confidentiality of communications over public networks, in particular by
prohibiting the listening into, tapping and storage of communications without the
consent of the users concerned.
Security of networks and services: a provider of a public electronic
communications service has to take appropriate measures to safeguard the
security of its service.
Data breach notifications: if a provider suffers a breach of security that leads to
personal data being lost or stolen, it has to inform the national authority and, in
certain cases, the subscriber or individual.
Traffic and location data: this data must be erased or made anonymous when no
longer required for communication or billing purposes, except if the subscriber has
given consent for another use.
Spam: subscribers must give their prior consent before unsolicited commercial
communications ("spam") are addressed to them. This also covers SMS text
messages and other electronic messages received on any fixed or mobile terminal.
Public directories: subscribers' prior consent is required in order for their telephone
numbers, e-mail addresses and postal addresses to appear in public directories.
Calling-line identification: subscribers must be given the option not to have their
telephone number disclosed when they make a call. 460
Comments: The Directive needs to be updated to fit today's reality for the protection of
privacy and inviolability of communications461 and align with the data protection
framework established by the GDPR 462.
The differences in the enforcement of the rules by each Member State have resulted in
unequal protections and safeguards for users across the EU and an unnecessary
complexity for cross-border businesses 463.
It will soon be replaced by the e-privacy Regulation (ePR) 464, 465, published in 2017 and
under negotiations within the EU institutions, which aims to include more protective
rules, among others against spam, and guaranteeing privacy of communications content
and metadata.
460
European Commission. (2002, July 12). The ePrivacy Directive. Shaping Europe’s Digital Future.
https://ec.europa.eu/12090/20210424092220/https://ec.europa.eu/digital-single-market/en/news/eprivacy-
directive.
461
Access Now. (2016, December). Review of the e-Privacy Directive. Retrieved August 26, 2021, from
https://www.accessnow.org/cms/assets/uploads/2016/12/Access-Now-ePrivacy-Directive-policy-paper.pdf.
462
463
https://www.accessnow.org/cms/assets/uploads/2016/12/Access-Now-ePrivacy-Directive-policy-paper.pdf.
464
European Commission. (2017, January 10). Proposal for a Regulation of the European Parliament and of the Council
concerning the respect for private life and the protection of personal data in electronic communications and
repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications). Retrieved August 26, 2021,
from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52017PC0010.
465
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Regarding the published draft, civil society organisations are concerned that the
Regulation lowers the level of protection already guaranteed under the GDPR 466. This
perception was shared by the Article 29 Working Party when it raised four points of grave
concern regarding the proposed e-privacy regulation 467, notably regarding tracking of
the location of terminal equipment, conditions for the analysis of content of metadata,
default settings of terminal equipment and software and tracking walls.
Open flow of data for the general interest and entrepreneurship

Key EU regulations and institutional strategies and policies concerning open flow of data for the
general interest and entrepreneurship:
Open Data Directive 468. Adopted in June 2019, in force since July 2019 and to be
transposed into national law by Member States by 16 July 2021. It revises the 2003
Public Sector Information (PSI) Directive 469, 470. It regulates the re-use of public
sector data and introduces the concept of "high-value datasets", which are
associated with benefits for society and the economy and relate to six thematic
categories such as geospatial information, earth observation and environment.
These high-value datasets must be available free of charge, in machine readable
formats, provided via Application Programming Interfaces (APIs) and, where
relevant, as bulk download.
Comments: The Open Data Directive is a good piece of legislation but it contains too
many exceptions and restrictions that can be extensively used by Member States to limit
its realisation regarding the types of documents and data that shall be publicly released,
reusing opportunities and requirements on formats and machine readability 471.
European Strategy for Data 472. Communication by the European Commission
published in February 2020. It concerns the strategy to build a single market for
data in the EU. It presents the strategic backdrop for initiatives aimed at promoting
data sharing and use; to strengthen Europe’s data spaces and cloud infrastructure;
to empower individuals to control their data and promote the development of
common European data spaces in strategic sectors and domains of public
interest 473.
466
Access Now. (2017, June). Access Now’s comments to the proposed e-Privacy Regulation. Retrieved August 26, 2021,
https://www.accessnow.org/cms/assets/uploads/2017/06/ePrivacy-paper-amendments-Access-Now.pdf.
467
Article 29 Data Protection Working Party. (2017, April). Opinion 01/2017 on the Proposed Regulation for the ePrivacy
Regulation (2002/58/EC) (No. WP247). European Commission. Retrieved August 26, 2021,
https://ec.europa.eu/newsroom/article29/items/610140/en.
468
Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use
of public sector information. Retrieved August 26, 2021, from https://eur-lex.europa.eu/eli/dir/2019/1024/oj.
469
European Commission. (n.d.). European legislation on Open data. Shaping Europe’s Digital Future. Retrieved August
26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/legislation-open-data.
470
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public
sector information. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=CELEX:32003L0098.
471
Reda, J. (2021, June 7). Edit Policy: Die Open-Data-Richtlinie und die deutschen Blockaden. Heise online. Retrieved
August 26, 2021, from https://www.heise.de/meinung/Edit-Policy-Die-Open-Data-Richtlinie-und-die-deutschen-
Blockaden-6063317.html.
472
European Commission. (n.d.-a). A European Strategy for Data. Shaping Europe’s Digital Future. Retrieved August 26,
2021, from https://digital-strategy.ec.europa.eu/en/policies/strategy-data.
473
Mildebrath A, H., & Ragonnaud, G. (2021, March). A European strategy for data (PE 690.527). European Parliamentary
ATAG/2021/690527/EPRS_ATA(2021)690527_EN.pdf.
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Comments: Respondents to the related consultation 474, 475 highlighted the following
flaws: cybersecurity of cloud systems; lack of data standardisation; in personal data the
strategy rests upon flawed assumptions about individuals’ capability to protect and
control their data 476 avoiding abuses, undue profiling, mass surveillance and violations
of their privacy.
Data Governance Act (DGA) 477. Published on 25 November 2020 and under
negotiations within the EU institutions, it was the first of a set of measures
announced in the data strategy. It aims to facilitate data-sharing across the EU and
between sectors, by strengthening mechanisms that increase data availability and
foster trust in intermediaries, i.e. data-sharing services and data altruism
organisations478, 479 while protecting the economic interests of Europe and the
privacy of its citizens. The Act is conceived on four pillars:
Pillar 1: Re-use of public sector data
Pillar 2: Regulation of data sharing services providers as “trusted intermediaries”
Pillar 3: Data altruism, which describes situations where individuals and companies
share the data they generate for the common good, voluntarily and without
seeking financial reward
Pillar 4: The establishment of a European Data Innovation Board 480
Comments: Concerns have been raised regarding the interplay of the DGA with the GDPR:
The DGA definitions should align and be clarified and specified on the grounds of the
GDPR. Also, some digital rights advocacy groups would prefer to exclude personal data
from the scope of the DGA, or increase data protection safeguards. Furthermore, the
relationship with the wider legal framework, including Regulation 2018/1807 on the free
flow of non-personal data, the Open Data Directive 2019/1024, the Trade Secrets
Directive 2016/943 and the ePrivacy Directive 2002/58/EC, requires clarification 481 to
474
European Commission. (2020). Consultation on the European Strategy for data. Retrieved August 26, 2021, from
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12271-European-Strategy-for-
data/public-consultation_en.
475
European Commission. (2020, July 24). Summary report of the public consultation on the European strategy for data.
Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/summary-report-public-consultation-
european-strategy-data.
476
European Commission. (2020). Consultation on the European Strategy for data. Retrieved August 26, 2021, from
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12271-European-Strategy-for-
data/public-consultation_en.
477
European Commission. (2020, November 25). Proposal for a Regulation of the European Parliament and of the Council
on European data governance (Data Governance Act). Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020PC0767.
478
Mildebrath A, H., & Ragonnaud, G. (2021, March). A European strategy for data (PE 690.527). European Parliamentary
Research Service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/RegData/etudes/ATAG/2021/690527/EPRS_ATA(2021)690527_EN.pdf.
479
European Commission. (2020b, November 25). European Data Governance. A new approach for the Digital Decade
[Factsheet / Infographic]. Shaping Europe’s Digital Future. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/library/data-governance-act.
480
European Parliament. (2020, November). Legislative train schedule. Proposal for a Regulation on European Data
Governance. Retrieved August 26, 2021, from https://www.europarl.europa.eu/legislative-train/theme-a-europe-fit-
for-the-digital-age/file-data-governance-act.
481
Mildebrath, H. (2021, June). Data Governance Act (PE 690.674). European Parliamentary Research Service. Retrieved
August 26, 2021, from
https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/690674/EPRS_BRI(2021)690674_EN.pdf.
121
avoid a lack of legal certainty that could result in a reduction in the protection of
individuals 482.
Digital services and environment

Key EU regulations and institutional strategies and policies concerning digital services and
environment:
Digital Services Act Package 483. Published in December 2020, the package
includes two legislative proposals currently under negotiation within the EU
institutions: the Digital Services Act (DSA) 484 and the Digital Market Act (DMA) 485.
The DSA proposal aims to update the EU's legal framework on digital services, in
particular the e-Commerce Directive 486, and would introduce new rules and
legislation regarding the responsibilities of users, providers offering their services
in the single market (like intermediary services —such as social networks, cloud
providers, online platforms, online advertisers, hosting services and, very large,
online platforms) and public authorities 487.
The DMA sets the criteria for qualifying large online platforms as “gatekeepers” 488
and aims to establish rules to counter power and economic imbalances, unfair
business practices [...] and their negative consequences, such as weakened
contestability of platform markets" 489.
Comments: This new legislation will be crucial for the future of the Internet. The Package
offers an unparalleled opportunity to improve fundamental rights online. However, in
the political debate some trends are particularly worrying and could endanger
fundamental freedoms490, in particular freedom of speech and inviolability of
communications, and abandon core tenets that made the Internet free, jeopardising the
goal of creating a human-rights centric model for Internet services.
482
European Commission. (2020). Consultation on Data sharing in the EU – common European data spaces (new rules).
Retrieved August 26, 2021, from https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12491-
Data-sharing-in-the-EU-common-European-data-spaces-new-rules-_en.
483
European Commission. (n.d.-c). The Digital Services Act package. Shaping Europe’s Digital Future. Retrieved August 26,
2021, from https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package.
484
on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC. Retrieved August
26, 2021, from https://eur-lex.europa.eu/legal-
content/en/TXT/?qid=1608117147218&uri=COM%3A2020%3A825%3AFIN.
485
486
Stolton, S. (2020, August 18). Digital agenda: Autumn/Winter Policy Briefing. Retrieved August 26, 2021, from Euractiv.
https://www.euractiv.com/section/digital/news/digital-agenda-autumn-winter-policy-briefing/.
487
European Commission. (n.d.-c). The Digital Services Act: ensuring a safe and accountable online. Retrieved August 26,
2021, from https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-
ensuring-safe-and-accountable-online-environment_en#documents.
488
European Commission. (n.d.-d). The Digital Markets Act: ensuring fair and open digital markets. Retrieved August 26,
2021, from https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-
ensuring-fair-and-open-digital-markets_en.
489
490
Xnet. (2021, October). La posición de Xnet sobre el DSA Package. Retrieved October 8, 2021 from https://xnet-
x.net/es/posicion-xnet-dsa-package.
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Previous controversies over copyright show that upload filters (algorithmic tools to
prevent the publication of "illegal content"), which may be integrated in the package due
to removal of content that is too fast with no obligations for judicial rulings, hamper free
speech. Moreover, the definition of illegal content is very loose and private platforms
could continue to retain much room to decide on the illegality of content and to monitor
(and censor) content 491, 492
Xnet asks to shift the focus from free speech to the obligation of verification for
institutions, political parties and businesses around content 493.
The transparency of algorithms, advertising and recommender systems (commercial and
political) and data-extractive business models should be exclusively opt-in with a
consistent policy on consent without leaving individuals with difficulties to exert fully
their rights due to the use of dark patterns: the burden of protections shouldn't be solely
on individual users; the default option should be not to track users by binding Do-Not-
Track signals and forbidding dark patterns to obtain users' consent.
In June 2021, a group of NGOs sent a letter to the EP asking to reinforce critical areas such
as interoperability, explicit prohibition of dark patterns, provision of effective
enforcement and strengthening of the end-users’ position. This action has been followed
by their position on the proposed amendments494, 495, 496.
An explicit affirmation of users’ informational self-determination and not promoting
intrusive monitoring of user communications is needed.
Many provisions could also affect the possibility for SMEs to innovate and manage ICT
since it creates barriers that only big players can afford to put in place causing an even
worse increment of monopolies.
All together a change of perspective is needed as this report suggests.
491
EDRi. (2020). ‘A for effort’: European Commission DSA/DMA proposal falls short of the systemic change needed to rein in
Big Tech power. Retrieved August 26, 2021, from https://edri.org/our-work/a-for-effort-european-commission-dsa-
dma-proposal-falls-short-of-the-systemic-change-needed-to-rein-in-big-tech-power/.
492
Electronic Frontiers Foundation. (2021). Digital Services Act Proposal - Recommendations for the EU Parliament and
Council. Retrieved August 26, 2021, from https://www.eff.org/files/2021/05/07/dsa_recommendations_
parliament_council.pdf.
493
Levi, S. (dir.) et al. (2019, October). #Fakeyou Fake news and disinformation. Ed. Rayo Verde. ISBN: 978-84-17925-06-2.
Retrieved August 26, 2021 from http://www.rayoverde.es/catalogo/fakeyou/.
494
Amnesty International et al. (2021). Civil society letter on the Digital Markets Acts - EU Parliament (IMCO). Retrieved
August 26, 2021, from https://www.eff.org/es/document/civil-society-letter-digital-markets-acts-imco-parliament.
495
Also, sent previously: ARTICLE 19 et al. (2021). EU: Joint letter on protecting end users’ rights in the Digital Markets Act.
Retrieved August 26, 2021, from https://www.article19.org/resources/eu-joint-letter-on-protecting-rights-in-the-
digital-markets-act/.
496
Penfrat, J. (2021, October 26). Digital Services Act. The EDRi guide to 2,367 amendment proposals. European Digital
Rights (EDRi).
123
Digital Compass 497. Communication by the European Commission published in

March 2021. The Communication defines concrete targets for the digital decade 498
pointing out as its main goals:
Digital skills for professionals and the population in general;
Secure and substantial digital infrastructures;
Digital transformation of businesses;
Digitalisation of public sectors.
Key policy areas include cloud computing, artificial intelligence, digital identities, data,
and connectivity 499, 500.
Comments: The objectives are broad, but some authors find that the strategy may be too
vague and too inspired by the belief that technological progress in itself will provide
solutions for the societal challenges that Europe is facing 501.
European Approach to Artificial Intelligence 502. Updating the 2018
Communication on Artificial Intelligence for Europe 503, the European Commission
published in April 2021 its AI package. The AI package proposes new rules and
actions to turn Europe into the global hub for trustworthy AI, and consists of:
A Communication Fostering a European approach to Artificial Intelligence 504;
An updated Coordinated Plan on Artificial Intelligence 505 with Member States (built
on the grounds of the 2018 Coordinated Plan);
A Proposal for an Artificial Intelligence Regulation laying down harmonised rules
for the EU (Artificial Intelligence Act or AIA) 506.
497
498
499
European Commission. (n.d.-c). The Digital Compass. Shaping Europe’s Digital Future. Retrieved August 26, 2021, from
https://digital-strategy.ec.europa.eu/en/policies/digital-compass.
500
European Commission. (n.d.). A Europe fit for the digital age. Empowering people with a new generation of technologies.
Priorities 2019–2024. Retrieved September 23, 2021, from https://ec.europa.eu/info/strategy/priorities-2019-
2024/europe-fit-digital-age_en#actions.
501
Keller, P. (2021, April 8). Europe’s Digital Decade: A compass without a map? Open Future. Retrieved August 26, 2021,
from https://www.openfuture.eu/compass-without-a-map/.
502
European Commission. (n.d.-b). A European approach to artificial intelligence. Shaping Europe’s Digital Future.
Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/policies/european-approach-artificial-
intelligence.
503
European Commission. (2018, April 25). Communication from the Commission to the European Parliament, the
European Council, the Council, the European Economic and Social Committee and the Committee of the Regions on
Artificial Intelligence for Europe. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/library/communication-artificial-intelligence-europe.
504
European Commission. (2021d, April 21). Communication on Fostering a European approach to Artificial Intelligence.
Shaping Europe’s Digital Future. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/
en/library/communication-fostering-european-approach-artificial-intelligence.
505
European Commission. (2021e, April 21). Annexes to the Communication from the Commission to the European
Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of
the Regions Fostering a European approach to Artificial Intelligence. Coordinated Plan on Artificial Intelligence 2021
Review. Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/library/coordinated-plan-artificial-
intelligence-2021-review.
506
European Commission. (2021f, April 21). Proposal for a Regulation of the European Parliament and of the Council
laying down harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain union
legislative acts. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-content/EN/TXT/
?qid=1623335154975&uri=CELEX%3A52021PC0206.
124
The Regulation Proposal envisions a risk-based approach to AI regulation, and will be

complemented, in order to create a safe and innovation-friendly environment for users,
developers and deployers by other legal initiatives to be pursued by the Commission:
EU rules to address liability issues related to new technologies, including AI
systems (last quarter 2021-first quarter 2022);
A revision of sectoral safety legislation (e.g. Machinery Regulation, General Product
Safety Directive, second quarter 2021).
Comments: The proposed AI Act is a major step forward as it calls for red lines by aiming
to prohibit unacceptable applications of AI that contravene EU values and fundamental
rights, and sets transparency measures such as a publicly accessible EU database on
stand-alone high-risk AI systems. However, it needs to be improved. For example, the
current language on prohibitions is too vague and obligations on high-risk systems are
insufficient to protect fundamental rights 507. Exceptions to allow predictive and mass
surveillance are too vague and wide. AI providers are left free to categorise risk with self-
assessment and develop their own mitigation measures. This fosters too little algorithmic
transparency and protection for human rights. AI should be regulated through a rights-
based approach, so as not to jeopardise citizens’ rights by merely demanding risk
mitigation from the very actors with a vested interest in rolling out this technology 508.
European Interoperability Framework (EIF) 509. The new released version of the
EIF in 2017 510 aims to give specific guidance on how to set up interoperable digital
public services.
Comments: Interoperability —the possibility of computer systems or software to
exchange and make use of each other information —and portability— the possibility for
users to move settings, data and content from a software or computer systems to an
other— are prerequisite for democratic, open digitalisation. Interoperability has been
talked about in the European institutions since the beginning of the millennium 511, but
still a lot still needs to be done. The concept often comes back often in legislation and
has been crucial in the debate on the DSA. It has been stated by the European Economic
and Social Committee that interoperability capacity varies considerably between and
within Member States to ensure greater interoperability and public access to digital
services and infrastructures. Clarity is needed on how to conceal the needs of business
and the public (user-centric services) 512. Interoperability and data portability can
507
Access Now. (2021a, April 21). EU takes minimal steps to regulate harmful AI systems, must go further to protect
fundamental rights. Retrieved August 26, 2021, from https://www.accessnow.org/eu-minimal-steps-to-regulate-
harmful-ai-systems/.
508
Access Now. (2021b, March 24). The EU should regulate AI on the basis of rights, not risks. Retrieved August 26, 2021,
from https://edri.org/our-work/eu-should-regulate-ai-on-the-basis-of-rights-not-risks/.
509
European Commission. (n.d.-f). The New European Interoperability Framework. ISA2 - Interoperability Solutions for
Public Administrations, Businesses and Citizens. Retrieved August 26, 2021, from https://ec.europa.eu/isa2/eif_en.
510
European Commission. (2017, March 23). Communication from the Commission to the European Parliament, the
Interoperability Framework –Implementation Strategy. Retrieved August 26, 2021, from https://eur-
lex.europa.eu/resource.html?uri=cellar:2c2f2554-0faf-11e7-8a35-01aa75ed71a1.0017.02/DOC_1&format=PDF.
511
Interoperable Delivery of European eGovernment Services to public Administrations, Businesses and Citizens (IDABC).
(n.d.) Interoperability. European Commission. Retrieved August 26, 2021, from https://wayback.archive-it.org/12090/
20200210201836/https://ec.europa.eu/idabc/en/chapter/5883.html.
512
European Economic and Social Committee. (2017, October 18). Opinion on the Communication from the Commission
to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the
Regions on European Interoperability Framework – Implementation Strategy. Retrieved August 26, 2021, from
125
contribute to reducing large monopolies in the sector, allowing other players to compete
in the market as well as to use the data in the general interest. It should function in real
time and continuously in a standardised way through harmonised open interfaces.
https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/european-interoperability-
framework-implementation-strategy-communication.
126
Factsheet 4. Chronological timeline of the right to secrecy of

correspondence (inviolability of communications)
‘The secrecy of correspondence 513 is perhaps the first more or less clear manifestation of the legal
protection of what would later be called “privacy”. This only emerged clearly after the French
Revolution and the birth of constitutionalism’ 514. Previously, the authorities read correspondence
and entered homes and the secrecy of correspondence was a privilege and not a right, as in the case
of all fundamental freedoms.
In the Age of Enlightenment, the right to secrecy of correspondence emerged in response to the
systematic interception of postal communications practised by absolutist monarchs 515. For example,
evidence of this can be found in the enactment of the right to secrecy of correspondence at the
Court of Barcelona in 1705 516. During the French Revolution, there is no express mention of this
guarantee in the Declaration of the Rights of Man and of the Citizen of 1789, although various
provisions of the Constituent Assembly proclaiming the inviolability of the secrecy of
communications by letter are cited 517. Napoleon reintroduced the systematic interception of
correspondence, a situation that continued until the end of the Second Empire. In terms of its origins
in Britain, a document entitled Report from the Secret Committee on the Post-office, published in
1844, is significant. The purpose of this committee was ‘to inquire into the State of the Law in respect
to the detaining and opening of Letters at the General post-office, and into the Mode under which
the Authority given for such detaining and opening had been exercised’ 518.
In contemporary times, both the Universal Declaration of Human Rights (1948) and the International
Covenant on Civil and Political Rights (1966) state that ‘No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence’.
513
Secrecy of correspondence. Retrieved August 26, 2021 from: https://en.wikipedia.org/wiki/
Secrecy_of_correspondence
Martínez-Villalba, Juan Carlos Riofrío. «DERECOM. Derecho de la Comunicación. - El derecho al secreto y la teoría del
cono». Retrieved August 26, 2021, from: http://www.derecom.com/secciones/articulos-de-fondo/item/83-el-
derecho-al-secreto-y-la-teoria-del-cono.
Riofrío Martínez-Villalba, Juan C (2008). El derecho de los secretos. Editorial Temis. ISBN 978-958-35-0691-8. OCLC
426398515.
514
Pascual Huerta, P. (2016). La génesis del derecho fundamental a la protección de datos personales. Universidad
Complutense de Madrid. Facultad de Derecho. Departamento de Derecho Constitucional. Retrieved August 26, 2021,
from https://eprints.ucm.es/id/eprint/43050/1/T38862.pdf.
515
Vega Torres, J. (2015). Sobre el alcance del secreto de las comunicaciones. In Hermida, C., Santos (Coord.), J. A. Una
Filosofía del Derecho en acción. Homenaje al profesor Andrés Ollero (pp. 1609–1626). Departamento de Publicaciones
del Congreso de los Diputados. Retrieved August 26, 2021, from https://core.ac.uk/download/pdf/144865073.pdf.
516
Departament d'Edicions del Parlament de Catalunya (2006, January). Constitucions, capítols i actes de cort 1701-1702,
1705-1706. Textos Jurídics Catalans. Lleis i costums II/10. Departament de Justícia, Generalitat de Catalunya. ISBN 84-
393-6970-0. Retrieved August 26, 2021 from: https://www.parlament.cat/document/cataleg/48142.pdf.
517
518
127
In the European Convention on Human Rights (1950), the ‘right to respect for private and family life’
includes the ‘right to correspondence’ which ‘aims to protect the confidentiality of private
communications and has been interpreted as guaranteeing the right to uninterrupted and
uncensored communications with others’. Electronic messages (emails) and information derived
from the monitoring of personal Internet use have been considered as correspondence in that
regard 519.
‘Therefore, Article 7 of the Charter is closely connected with the protection of telephone, email and
other electronic means of communications from interception’ 520, 521.
In the EU, the "right to respect for correspondence" and "confidentiality of communications" can be
found since the Directive on the processing of personal data and the protection of privacy in the
telecommunications sector (1997)522, replaced by the E-privacy Directive (2002) 523 which proposed
reform 524 also mentions article 7 of the EU Charter of Fundamental Rights (2007) 525, which states that
"1. Everyone has the right to respect for their private and family life, his home and their correspondence".
Inviolability of communications is also protected by the European Electronic Communications Code,
which establishes a harmonised framework for the regulation of electronic communications
networks, electronic communications services, interpersonal communication and associated
facilities and associated services 526.
The General Data Protection Regulation (GDPR) 527 relates to inviolability of communications as a
fundamental right in Recital. 4 (3):
“This Regulation respects all fundamental rights and observes the freedoms and principles recognised in
the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and
communications […].” and in Article 95 delegates the protection to E-privacy, now under revision by
the proposed e-Privacy Regulation 528.
519
Roagna, I. (2012). Protecting the right to respect for private and family life under the European Convention on Human
Rights. Council of Europe Human Rights Handbooks. Retrieved August 26, 2021, from
https://www.echr.coe.int/LibraryDocs/Roagna2012_EN.pdf.
520
521
Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 17–35. Retrieved September 26,
2021, from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32007X1214%2801%29.
522
Directive 97/66/EC on the processing of personal data and the protection of privacy in the telecommunications sector.
Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31997L0066.
523
personal data and the protection of privacy in the electronic communications sector. Retrieved August 26, 2021, from
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32002L0058.
524
European Commission. (2017, January 10). Proposal for a Regulation on Privacy and Electronic Communications.
Retrieved August 26, 2021, from https://digital-strategy.ec.europa.eu/en/library/proposal-regulation-privacy-and-
electronic-communications.
525
Charter of Fundamental Rights od the European Union. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/charter/pdf/text_en.pdf.
526
Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the
European Electronic Communications Code. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
527
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679.
528
See Factsheet 3.
128
On this point, the positive mainstream communicative success of the GDPR should not be a reason
to set aside the secrecy of communications from a policy perspective. Although it is not core in
the GDPR, this right is an essential component for the defence of the right to privacy.
Finally, as has been clearly indicated by several organisations and as stated in the above-mentioned
E-privacy Directive, in the digital age, encryption is what guarantees the inviolability of
communications.
A reference document in this respect is the study “Mass surveillance - Risks, Opportunities and
Mitigation Strategies” by the Scientific Foresight (STOA) Unit of the EPRS which indicates that “As of
today, the only way for citizens to counteract surveillance and prevent breach of privacy consists in
guaranteeing uncorrupted end-to-end encryption of content and transport channel in all their
communications" 529.
The UN in the report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression (2015) stated that “Encryption and anonymity, today’s leading
vehicles for online security, provide individuals with a means to protect their privacy, empowering
them to browse, read, develop and share opinions and information without interference and
enabling journalists, civil society organisations, members of ethnic or religious groups, those
persecuted because of their sexual orientation or gender identity, activists, scholars, artists and
others to exercise the rights to freedom of opinion and expression." 530, 531, 532, 533.
529
Scientific Foresight (STOA) Unit. (2015, January). Mass Surveillance. Part 1 - Risks, Opportunities and Mitigation Strategies
(PE 527.409). European Parliamentary Research Service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/RegData/etudes/STUD/2015/527409/EPRS_STU(2015)527409_REV1_EN.pdf.
530
Kaye, D. (2015, May). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, David Kaye. Human Rights Council. Retrieved August 26, 2021, from
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A.HRC.29.32_AEV.doc.
531
Xnet. (2015, December 17). Sobre el Derecho a la Privacidad y a la Encriptación. Xnet - Internet, derechos y democracia
en la era digital. Retrieved August 26, 2021, from https://xnet-x.net/derecho-privacidad-encriptacion/.
532
Barlow, J.P. (1994). Selling Wine Without Bottles: The Economy of Mind on the Global Net. John Perry Barlow Library,
Electronic Frontier Foundation. Retrieved October 12, 2021 from https://www.eff.org/pages/selling-wine-without-
bottles-economy-mind-global-net.
533
Cabello, F. y Solera, F. (2020). «Ofuscación algorítmica: Obnubilación táctica para una privacidad por las nubes». In
Sabariego, J., Jobim. A y Baldissera, E. (eds.). Algoritarismos (332–346). São Paulo: Tirant Lo Blanch. ISBN/ISSN
9788418329715. Retrieved October 12, 2021 from
https://idus.us.es/bitstream/handle/11441/106828/Algoritarismos.pdf?sequence=1&isAllowed=y.
129
Factsheet 5. The EU framework for the right to access the

Internet and international standards for high quality
essential services to improve it
EU legal chronology of the right to access the Internet

In 2012, the Code of EU Online Rights 534, which brings together the content of the European
legislation related to the Internet, foresees the right of access to electronic communications
networks and services, whereby ‘Everyone in the EU must have the possibility to access a minimum
set of electronic communications services of good quality at an affordable price. This is also known
as the “universal service” principle.
As regards the right of access to the Internet, all reasonable requests for connection at a fixed
location to a public communications network must be met by at least one operator.
This connection must be capable of supporting voice, fax and data communications at data rates
that are sufficient to permit functional Internet access and the provision of voice telephony services.
Since the 2018 European Electronic Communications Code 535 was introduced, States have been
responsible for ‘ensuring the bandwidth necessary for social and economic participation in society’
by consumers within their territory. Broadband Internet access may qualify as adequate if it covers
at least the following services: ‘E-mail, search engines enabling search and finding of all types of
information, basic training and education online tools, online newspapers or news, buying or
ordering goods or services online, job searching and job searching tools, professional networking,
Internet banking, eGovernment service use, social media and instant messaging, and calls and video
calls (standard quality)’ 536. To achieve this, Member States may impose universal service obligations
on specific Internet providers or sets of providers 537, whilst promoting ‘effective and fair
competition’ and minimising market distortions 538.
As summarised by Mildebrath 539, while the previous Universal Services Directive (USD) required
Member States to ensure functional Internet access for users at a fixed location, the recast provisions
in Article 84 of the 2018 EECC require Member States to ‘ensure that all consumers … have access
534
/publication/50d06da2-18bb-40b2-9e97-7d19527f2c88/language-en/format-PDF.
535
content/EN/TXT/?uri=uriserv%3AOJ.L_.2018.321.01.0036.01.ENG.
536
Article 84(3) and Annex V to Directive (EU) 2018/1972.
537
Article 86 of Directive (EU) 2018/1972.
538
Recital 23, and Articles 85(5) and 86(2) of Directive (EU) 2018/1972.
539
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282021%29696170.
130
to an affordable … adequate access service 540… at the quality specified in their territories … at a
fixed broadband Internet location’.
The Code aims to promote the take-up of very high capacity networks 541, in order to enable the
citizens of the Union to obtain ‘maximum benefits in terms of choice, price and quality on the basis
of effective competition, by maintaining the security of networks and services, by ensuring a high
and common level of protection for end-users through the necessary sector-specific rules and by
addressing the needs, such as affordable prices" (but then adds: "of specific social groups") 542.
In terms of case-law, although a general, fundamental right to Internet access or connectivity has
not yet been established 543, criteria are being consolidated to guarantee meaningful access and
protect access to the Internet.
EU definition of essential public service and how it relates to the right to access
the Internet
In Europe, Services of General Interest (SGI) are subject to Public Service Obligations (PSO) 544, and
can be provided by both the State and the private sector. Examples of these services include:
electronic communications, energy, public transport, banking, postal services, social services, and
health 545, 546 access to which is guaranteed by the Charter 547, 548 of Fundamental Rights of the
540
BEREC. (2020, June 11). BEREC Report on Member States’ best practices to support the defining of adequate broadband
Internet Access Service (IAS). Retrieved August 26, 2021, from: https://berec.europa.eu/eng/document_register/
subject_matter/berec/reports/9289-berec-report-on-member-states-best-practices-to-support-the-defining-of-
adequate-broadband-Internet-access-service-ias.
541
As defined by Article 2(2) Directive (EU) 2018/1972 as "an electronic communications network which is capable of
delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink
bandwidth, resilience, error-related parameters, and latency and its variation; network performance can be
considered similar regardless of whether the end-user experience varies due to the inherently different characteristics
of the medium by which the network ultimately connects with the network termination point …”.
542
Article 3(2)(d) Directive (EU) 2018/1972.
543
Referring to the judgment in the case with application No 21575/08, Jankovskis v Lithuania, ECtHR, 17 January 2017,
by which the Court grants a prisoner access to a website, which requires access to Internet-infrastructure and a
terminal device as a precondition on the grounds of the rights to information and education, Mildebrath states that
even if the ‘judgement were interpreted as requiring a positive intervention from the state to facilitate Internet access,
the rationale could not be extended to benefit the general public, as the ECtHR explicitly objected to generalisations.
In the long run, consistency between the rulings of the ECtHR and the CJEU may result from Articles 52(3) and 53 of
the CFR’. See, Mildebrath, H., (2021, July 15). Internet access as a fundamental right: Exploring aspects of connectivity.
European Parliamentary Research Service. Retrieved August 26, 2021, from https://www.europarl.europa.eu/
thinktank/en/document.html?reference=EPRS_STU%282021%29696170, page 8.
544
Public service obligations or PSOs are obligations imposed on an organisation, by legislation or contract, to provide a
service of general interest.
545
European Commission (n.d.). Open Internet. Retrieved August 26, 2021, from https://ec.europa.eu/digital-single-
market/en/open-Internet.
546
European Commission (2011, December 20). Communication from the commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions. A Quality Framework for
Services of General Interest in Europe. Retrieved August 26, 2021, from https://ec.europa.eu/
archives/commission_2010-2014/president/news/speeches-statements/pdf/20111220_1_en.pdf.
547
Article 36 of the Charter of Fundamental Rights of the European Union.
548
European Commission (2011, December 20). Communication from the commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions. A Quality Framework for
Services of General Interest in Europe. Page 2. Retrieved August 26, 2021, from https://ec.europa.eu/
archives/commission_2010-2014/president/news/speeches-statements/pdf/20111220_1_en.pdf.
131
European Union, which has the same legal value as the Treaties since the Treaty of Lisbon 549, along
with the EU’s obligation to ensure a high level of consumer protection through its policies550.
These services should be provided under conditions of equality, continuity and adaptability 551.
Some PSO are Universal Public Obligations (USO) to ensure that certain services are made available
to all consumers and users at an affordable price.
No 20 of the European Pillar of Social Rights 552 states that ‘Everyone has the right to access essential
services of good quality, including water, sanitation, energy, transport, financial services and digital
communications. Support for access to such services shall be available for those in need’. In its staff
working document accompanying the European Pillar of Social Rights, the European Commission
went a step further and linked the universal service obligation to the Charter of Fundamental Rights,
namely Article 36 of the CFR (access to services of general economic interest) 553. However, because
this is a text proclaimed by the European Parliament, the Council and the Commission in a non-
binding form, and is thus unenforceable, it may serve merely as an interpretative tool for the Court
of Justice of the EU (CJEU).
In relation to Internet Access, with Directive 2009/136/EC 554, the Internet is an entitlement in the
sense that no European citizen should be denied access to the Internet.
549
550
Article 38 of the Charter of Fundamental Rights of the European Union.
551
Camenen, F.-X. (1996). Public undertakings and public service activities in the European Union. Pp. 23-27. Retrieved
August 26, 2021, from https://www.europarl.europa.eu/RegData/etudes/etudes/join/1997/165202/DG-4-
ECON_ET(1997)165202_EN.pdf.
552
Parliamentary Research Service. Retrieved August 26, 2021, from https://www.europarl.europa.eu/
thinktank/en/document.html?reference=EPRS_STU%282021%29696170, citing: Communication on Establishing a
European Pillar of Social Rights, COM(2017) 250 final, European Commission, 26 April 2017, p. 7; Staff working
document on Establishing a European Pillar of Social Rights, SWD(2017) 201 final, European Commission, 26 April
2017, p. 4; Staff working document on Establishing a European Pillar of Social Rights, SWD(2017) 206 final, European
Commission, 26 April 2017, p. 14.
553
Parliamentary Research Service. Retrieved August 26, 2021, from https://www.europarl.europa.eu/
thinktank/en/document.html?reference=EPRS_STU%282021%29696170, citing: Staff working document on
Establishing a European Pillar of Social Rights, SWD(2017) 201, European Commission, 25 April 2017, p. 73 et seq.;
Interinstitutional Proclamation on the European Pillar of Social Rights, 2017/C 428/09, European Parliament, Council
and European Commission, 13 December 2017.
554
132
The 2018 European Electronic Communications Code 555 Internet Access state in the EU a universal
service that should be enjoyed as a right, meaning that all consumers have the right, at an affordable
price, to an available adequate broadband Internet access and voice communications services, at a
fixed location.
Table 5: Evolution of Universal Service – Functional Internet Access (FIA)
Source: BEREC. (2020, June 11). BEREC Report on Member States’ best practices to support the defining
of adequate broadband Internet Access Service (IAS). Retrieved August 26, 2021, from
service-ias
555
133
Legal definition of the higher standards for essential basic public service of
general interest applicable to access to the Internet
The higher recognised standards that could be applied both from the perspective of the essential
services and the perspective of the Internet in itself are:
Access to an open Internet, in accordance with the requirements of net neutrality,
namely one where access and traffic are not prevented, hindered or interrupted.
The flow should also not be restricted, interfered with (Article 3, Regulation (EU)
No 2015/2120) 556, prioritised (European Commission, n.d.) 557 or blocked (Article 3,
Regulation (EU) 2018/302) 558. Access and traffic must be permitted on equal,
equitable terms, without any discrimination on the basis of the sender and
receiver, source or destination of the information, the content accessed or
distributed or its author, the applications or services used or provided, or the
terminal equipment used (Article 3, Regulation (EU) No 2015/2120) 559 or personal,
social, economic or geographical conditions. Lastly, access should be continuous
as people rely on the Internet to obtain information, communicate and socialise,
and for a vast range of daily activities. Citizens have a legitimate expectation that
the Internet will be active and running (Council of Europe, n.d., p. 2) 560 (Council of
Europe, 2014, p. 1) 561 with the greatest possible access (Council of Europe, 2014,
p. 3 and 13) 562, namely full access. Commercial practices such as zero rating (BEREC,
n.d.) 563 that generate captive clients and biased access to information, often
concealed under the guise of altruism 564, should be eliminated.
556
Article 3(3), Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying
down measures concerning open Internet access and amending Directive 2002/22/EC on universal service and users’
rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on
public mobile communications networks within the Union. Retrieved August 26, 2021, from https://eur-
557
European Commission, (n.d). Open Internet. Retrieved August 26, 2021, from https://ec.europa.eu/digital-single-
market/en/open-Internet.
558
Article 3(1), Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on
addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of
residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU)
2017/2394 and Directive 2009/22/EC. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:32018R0302.
559
560
Council of Europe (n.d.). Safeguarding Human Rights on the Net. Retrieved August 26, 2021, from
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806b38ba,
page 2.
561
Council of Europe (2014, April 16). Recommendation CM/Rec(2014)6 and explanatory memorandum. Guide to human
rights for Internet users. Retrieved August 26, 2021, from https://rm.coe.int/CoERMPublicCommonSearchServices/
DisplayDCTMContent?documentId=09000016804d5b31, page 1.
562
rights for Internet users. Retrieved August 26, 2021, from https://rm.coe.int/CoERMPublicCommonSearchServices/
DisplayDCTMContent?documentId=09000016804d5b31, page 3 and 13.
563
BEREC (n.d.). Zero-rating. Retrieved August 26, 2021, from https://berec.europa.eu/eng/open_Internet/zero_rating/
564
Net neutrality criticism in India. In Internet.org. Retrieved August 26, 2021, from
https://en.wikipedia.org/wiki/Internet.org#Net_neutrality_criticism_in_India.
134
The right to quality access at optimal upload and download speeds, capable of
supporting voice, fax and data communications traffic (Code of EU online rights) 565
or other future traffic types, and thus ensuring access in terms of substantive
prerequisites, and not just as the mere possibility of Internet connection
(Article 2.3, Italian Chamber of Deputies, 2015) 566 Restrictive downward
interpretations of what is considered a necessary bandwidth for social and
economic participation in society should be avoided to avoid cases like Spain,
where this is currently still only 1 Mbps567, 568.
Availability: Requests for connection of a fixed location to a public

communications network, with an adequate broadband Internet access service,
must be guaranteed by at least one operator (Code of EU online rights) 569 (Article
86(3), Directive 2018/1972) 570.
Accessibility and affordability: all persons, irrespective of income or other socio-

economic, geographical or personal considerations, should always have equal
access to such services (UN Secretary-General’s High-level Panel on Digital
Cooperation, 2019) 571 (Article 84(1), 84(2) and 85, Directive 2018/1972) 572.
565
/publication/50d06da2-18bb-40b2-9e97-7d19527f2c88/language-en/format-PDF, page 4, Section 1, Chapter 1.
566
Article 2.3, Italian Chamber of Deputies. (2015). Declaration of Internet Rights. Retrieved August 26, 2021, from
https://www.camera.it/application/xmanager/projects/leg17/commissione_Internet/testo_definitivo_inglese.pdf.
567
CNMC. (n.d.). Universal service and regulatory accounting. Retrieved August 26, 2021, from
https://www.cnmc.es/en/ambitos-de-actuacion/telecomunicaciones/servicio-universal-contabilidad-regulatoria.
568
See: CNMC. (n.d.). Universal service and regulatory accounting. Retrieved August 26, 2021, from
https://www.cnmc.es/en/ambitos-de-actuacion/telecomunicaciones/servicio-universal-contabilidad-regulatoria and
Telefónica de España, S.A.U. (n.d.) Todo el mundo tiene derecho a Internet y nosotros lo garantizamos. Retrieved August
26, 2021, from https://www.movistar.es/particulares/Internet/adsl-fibra-optica/banda-ancha-servicio-universal/
where furthermore, there is no monitoring to prevent companies from imposing further limitations on their contracts,
effectively voiding their obligation and the rights of users (see: CNMC (2017, February 16). Acuerdo por el que se emite
informe al Ministerio de Energía, Turismo y Agenda Digital relativo a las condiciones competitivas del mercado minorista
de acceso telefónico fijo y la asequibilidad de este servicio. Retrieved August 26, 2021, from
https://www.cnmc.es/sites/default/files/1726040_9.pdf).
569
/publication/50d06da2-18bb-40b2-9e97-7d19527f2c88/language-en/format-PDF, page 4, Section 1, Chapter 1.
570
Article 86(3), Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018
establishing the European Electronic Communications Code. Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2018.321.01.0036.01.ENG.
571
UN Secretary-General’s High-level Panel on Digital Cooperation (2019). The age of digital interdependence. Retrieved
August 26, 2021, from https://www.un.org/en/pdfs/DigitalCooperation-report-for%20web.pdf, page 4.
572
Article 84(1), 84(2) and 85, Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December
2018 establishing the European Electronic Communications Code. Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2018.321.01.0036.01.ENG.
135
Interoperability and freedom of choice: It should be ensured that users are able to
choose their access providers, devices, applications, services (Code of EU online
rights) 573 (Council of Europe, 2014, pp. 4 and 18) 574 and operating systems
(Article 2(4), Italian Chamber of Deputies, 2015) 575, including the software
distributed, enabling portability of services and making it possible to access the
same content and devices by the same number of users and with the same
functionalities from other Member States in the same way as in the state of origin
(Article 3(1), Regulation (EU) No 2017/1128) 576 and without ‘agreements between
providers of Internet access services and end-users on commercial and technical
conditions and the characteristics of Internet access services such as price, data
volumes or speed, and any commercial practices conducted by providers of
Internet access services, shall not limit the exercise of the rights of end-users’
(Article 3(2), Regulation (EU) No 2015/2120) 577. In any case, these agreements
should comply with the applicable requirements of transparency and information
in relation to the services contracted, consumption, etc. (Article 103, Directive
2018/1972) 578.
Access that respects the privacy, confidentiality and inviolability of

communications and protection of personal data, privacy and intimacy and that is
free from surveillance, namely with the express prohibition on any ‘interference
with electronic communications data, such as by listening, tapping, storing,
monitoring, scanning or other kinds of interception, surveillance or processing of
electronic communications data, by persons other than the end-users’ (Article 5, E-
privacy Regulation Proposal) 579, permitting the use of encryption tools in all cases,
because ‘as of today, the only way for citizens to counteract surveillance and
prevent breach of privacy consists in guaranteeing uncorrupted end-to-end
encryption of content and transport channel in all their communications’ (Panel
573
doi:10.2759/8899. Retrieved August 26, 2021, from https://op.europa.eu/en/publication-detail/-/publication/
50d06da2-18bb-40b2-9e97-7d19527f2c88/language-en/format-PDF, page 5, section 1, chapter 2.
574
rights for Internet users. Retrieved August 26, 2021, from https://rm.coe.int/
CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804d5b31, pages 4 and 18.
575
Article 2(4) Italian Chamber of Deputies. (2015). Declaration of Internet Rights. Retrieved August 26, 2021, from
https://www.camera.it/application/xmanager/projects/leg17/commissione_Internet/testo_definitivo_inglese.pdf.
576
Article 3(1), Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border
portability of online content services in the internal market. Retrieved August 26, 2021, from https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02017R1128-20170630.
577
578
Article 103, Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing
the European Electronic Communications Code. Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
579
Article 5, Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private
life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation
on Privacy and Electronic Communications). Retrieved August 26, 2021, from https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:52017PC0010.
136
for the Future of Science and Technology (STOA), 2015) 580. To achieve this,
‘anonymous spaces that are free from observation and where identities and
activities are not documented, must be guaranteed’ (Office of the Special
Rapporteur for Freedom of Expression of the Inter-American Commission on
Human Rights (IACHR), 2017, paragraph 227) 581 and the inviolability of
communications should be guaranteed at all.
580
Scientific Foresight (STOA) Unit. (2015, January). Mass Surveillance. Part 1 - Risks, Opportunities and Mitigation Strategies
(PE 527.409). European Parliamentary Research Service. Retrieved August 26, 2021, from
https://www.europarl.europa.eu/RegData/etudes/STUD/2015/527409/EPRS_STU(2015)527409_REV1_EN.pdf,
page 55.
581
Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights
(IACHR). (2017, March 15). Estándares para una Internet Libre, Abierta e Incluyente. Retrieved August 26, 2021, from
http://iplexcr.org/wp-content/uploads/2018/08/Estandarespara-unInternet-libreabiertae-incluyente.pdf,
paragraph 227, page 89.
137
Factsheet 6. Aspects related to EU strategies on investment

for democratic digitalisation (1)
Related to chapter 7
EU position on open-source software

On October 21st 2020, the European Commission approved the new Open-Source Software
Strategy 2020-2023 582. This aims to be an important step towards achieving the goals of the
overarching Digital Strategy of the Commission and contributing to the Digital Europe programme.
The internal strategy, under the theme “Think Open”, claims to set out a vision for encouraging and
leveraging the transformative, innovative and collaborative power of open-source, its principles and
development practices. It promotes the sharing and reuse of software solutions, knowledge and
expertise, to deliver better European services that benefit society and lower costs to that society.
The Commission commits to increasing its use of open-source not only in areas such as IT, but also
in areas where it can be strategic.
The open-source strategy claims to support President von der Leyen’s Political guidelines for the
next Commission (2019-2024) 583: ‘(...) it is not too late to achieve technological sovereignty in some
critical technology areas.’
A recent keynote by the EU internal market Commissioner Thierry Breton at the annual EU Open-
Source Policy Summit analysed the importance and the strategic opportunity that open-source
software (OSS) brings. Commissioner Breton underscored OSS's critical role in accelerating Europe's
€750 billion recovery and the goal to further "embed open-source" into Europe's longer-term policy
objectives in the public sector and other key industrial sectors. There was also a policy-related call
to action to expand the OSS value proposition to many other areas of digital sovereignty. The EU's
new Open-Source Study 584 reveals that the economic impact of OSS is estimated to have been
between €65 and €95 billion and an increase of 10% in source code contributions would generate
in the future around additional €100 billion in EU GDP per year.
The possibilities of open-source software are defined as a call to action to collaborate on
accelerating European competitiveness and transformation and is a key to sovereignty
(interoperability within services and portability of data and workloads) to reflect key European
values through open-source 585.
See also EC Study on the impact of open-source software and hardware on technological
independence, competitiveness and innovation in the EU economy 586.
582
European Commission. (2020, October 21). Communication to the Commission on Open-source software strategy
2020-2023. Think Open. Retrieved August 26, 2021 from https://ec.europa.eu/info/sites/default/
files/en_ec_open_source_strategy_2020-2023.pdf.
583
Von der Leyen, U. (2019). A Union that strives for more. My agenda for Europe. Retrieved August 26, 2021, from
https://ec.europa.eu/info/sites/default/files/political-guidelines-next-commission_en_0.pdf.
584
European Commission. (2020, October 8). Study and survey on the impact of Open-source Software and Hardware in
the EU economy. Shaping Europe’s digital future. Retrieved August 26, 2021, from https://digital-
strategy.ec.europa.eu/en/news/study-and-survey-impact-open-source-software-and-hardware-eu-economy.
585
Lovegrove, J. (2021, March 25). Linux powers the Internet, confirms EU commissioner. Opensource.com. Retrieved
August 26, 2021, from https://opensource.com/article/21/3/linux-powers-Internet.
586
Blind, K., Böhm, M., Grzegorzewska, P., Katz, A., Muto, S., Pätsch, S., Schubert, T. (2021, September 6). Study about the
impact of open-source software and hardware on technological independence, competitiveness and innovation in
138
Table 6: The impact of open-source software and hardware on technological

independence, competitiveness and innovation in the EU economy. Open-source
software contributors and related costs and value added per EU Member State in 2018.
Source: Blind, K., Böhm, M., Grzegorzewska, P., Katz, A., Muto, S., Pätsch, S., Schubert, T. (2021,
September 6). Study about the impact of open-source software and hardware on technological
independence, competitiveness and innovation in the EU economy. Shaping Europe’s digital future.
European Commission. Retrieved September 26, 2021 from https://digital-strategy.ec.europa.eu/
en/library/study-about-impact-open-source-software-and-hardware-technological-independence-
competitiveness-and
the EU economy. Shaping Europe’s digital future. European Commission. Retrieved September 26, 2021 from
https://digital-strategy.ec.europa.eu/en/library/study-about-impact-open-source-software-and-hardware-
technological-independence-competitiveness-and.
139
Factsheet 7. Aspects related to EU strategies on investment

for democratic digitalisation (2)
Mechanism to improve participation of SMEs in public tenders - The Spanish law

as a case study
The transposition 587 of the 2014 Directives588, 589, 590 in favour of the engagement of SMEs and digital
talent introduces some important elements in this respect, namely:
Qualitative criteria related to innovation that opens up the opportunity to
discourage artificial lowering of prices or the generation of captive customers
obsolescent services and encourage the use of OS and its improvement.
The criteria for awarding contracts establish the best value for money on the basis of
economic but also qualitative criteria. This means that the criterion of lower costs that
could encourage dumping on the one hand and, to offset this, the generation of captive
customers for easily obsolescent services (flagrant in the case of digital services) on the
other, is no longer a priority. The qualitative social, environmental and innovation
criterion enables longer-term options with the opposite result.
Division by lots, the establishment of a maximum payment period, a fair % of
subcontracting.
To expand the possibilities for small, medium-sized enterprises and social economy
enterprises to bid in public procurement procedures, the introduction of division by
lots 591 should be noted and used as a general rule in order to involve SME. This is a
substantial change in the notion of the splitting of contracts, establishing as a general
rule that public procurement will be split into lots and the decision not to do so
should be very well justified. Each lot operates as a separate contract, each one with its
own budget, different technical and economic solvency, different requirement for a
definitive guarantee, etc. Tendering using lots is an essential measure to facilitate an
affordable access to public procurement by SMEs, as they increase competition and
achieve greater efficiency due to the degree of specialisation of SMEs.
587
588
Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession
contracts. Retrieved August 26, 2021 from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%
3AOJ.L_.2014.094.01.0001.01.ENG.
589
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and
repealing Directive 2004/18/EC. Retrieved August 26, 2021 from https://eur-lex.europa.eu/legal-content/EN/TXT/
?uri=CELEX%3A02014L0024-20200101.
590
Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities
operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC. Retrieved
August 26, 2021 from https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32014L0025.
591
Article 99.4, Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al
ordenamiento jurídico español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26
de febrero de 2014. Retrieved August 26, 2021 from https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902.
140
Flexibility in solvency requirements. Similarly the establishment of a maximum

payment period of sixty days after the invoice is presented 592 and the obligation
for contractors to make payment to subcontractors and suppliers within the same
period 593.
The % of subcontracting allowed is important for small companies that do not have a
permanent staff and hire freelance programmers when they obtain tenders. Obviously,
this should not promote job insecurity or increase costs through intermediation.
Another new and interesting element of the law, especially to make it easier for start-ups
and SMEs to participate in tendering, is the relaxation of solvency requirements such
as: the inclusion of solvency through external resources 594. This allows recourse to the
solvency and resources of other organisations that will contribute their resources during
performance of the contract. This also includes a simplification of the economic and
technical solvency requirements, the extension of the methods permitted to prove
solvency, especially for start-ups 595, and an exemption from proving solvency
requirements in tenders with lower amounts 596.
Higher standards of transparency. The law establishes that ‘the information shall
be published in open, reusable standards 597, 598.
592
593
Article 216, Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al ordenamiento
594
595
Article 88.2 for works contracts, Article 89.1.h for supply contracts and Article 90.4 for services contracts, Ley 9/2017,
de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al ordenamiento jurídico español las
Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de 2014. Retrieved
August 26, 2021 from https://www.boe.es/buscar/act.php?id=BOE-A-2017-12902.
596
Article 159.6 Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al
597
Article 347.8 Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al
598
Article 63 Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público, por la que se transponen al ordenamiento
141
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This reflection paper has been produced at the request
QA-01-22-019-EN-N
of the cabinet of the President of the European
Parliament. Digital transformation is currently at the
core of the European agenda. Starting from a case
study, this paper has detected a number of loopholes
relating to the foundations on which societies are being
digitalised. These deficiencies could undermine the
benefits of valuable and distributed human capacities,
and even human rights themselves. The paper analyses
the situation and the efforts already made in the EU. It
proposes policy recommendations and three
actions/prototypes as correctors of the main flaws, to
foster digitalisation that reaches all citizens in a
democratic way.
This document is prepared for, and addressed to, the Members and staff of the European
Parliament as background material to assist them in their parliamentary work. The content of
the document is the sole responsibility of its author(s) and any opinions expressed herein should
not be taken to represent an official position of the Parliament.
ISBN 978-92-846-8866-1
doi:10.2861/671958
QA-01-22-019-EN-N

Proposal For A Sovereign and Democratic Digitalisation

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Proposal For A Sovereign and Democratic Digitalisation

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Proposal for a

Lead author: Simona Levi, Xnet

Digital transformation is currently at the core of the European agenda.

1. Coordinator and main author:

In chapter 2: DD working group.

In chapter 4.2: Àlex Puig, Caelum Lab founder.

In chapter 6.2: Ramon Roca, president of Guifi Net Foundation.

Linguistic Review: Christopher Millard.

Support to editing: Xavier Farrés.

Manuscript completed in December 2021. (Original language: EN)

DISCLAIMER AND COPYRIGHT

Brussels © European Union, 2022.

PE 698.867 ISBN 978-92-846-8866-1 DOI:10.2861/671958 QA-01-22-019-EN-N

1. Introduction - Statement of intent and objectives of the report ______________________ 3

Framework of the report ____________________________________________________ 15

Action/Prototype 1 - Democratic Digitalisation Plan pilot scheme ___________________ 23

3. European institutional framework and trends in sovereign digitalisation ____________ 28

Digital sovereignty from the EU and states perspective ___________________________ 28

Digital sovereignty from the citizens' perspective ________________________________ 29

PART 2 – ESSENTIAL DIGITALISATION INFRASTRUCTURES OF EVERYDAY LIFE NOT INCLUDED

4. A system for interpersonal communication, nowadays known as ‘email’ _____________ 43

‘Email’ as a gateway to digitalisation __________________________________________ 43

Action / Prototype 2 - After-email: Infrastructure for interpersonal communication that

Summary and policy recommendations - Infrastructures for interpersonal communication

5. The browser - Firefox as a case study and an opportunity __________________________ 52

PART 3 – WEAKNESSES IN POLICY ENFORCEMENT RELATED TO THE EU’S DIGITAL

6.1.1. From consumer product to right ___________________________________________ 67

6.1.2. Net Neutrality __________________________________________________________ 70

The geographical digital divide ______________________________________________ 73

7. Sustainability of sovereign and democratic digitalisation. Anti-monopolistic and investment

FLOSS (Free/Libre Open-Source Software) as a means for return on public investment in

7.2.1. European procurement Directives __________________________________________ 83

7.2.2. Public Procurement in Member States - Spain as a case study____________________ 84

Risks to competition of commercial infrastructure services "for free" _________________ 93

7.3.1. Background ____________________________________________________________ 93

7.3.2. Risk 1: competition will not be guaranteed in public procurement ________________ 94

7.3.3. Risk 2: ‘Unlevelling’ the playing field ________________________________________ 95

7.3.4. Risk 3: Market unassailability ______________________________________________ 95

Summary and policy recommendations for virtuous public procurement in democratic

ANNEXED FACTSHEETS _________________________________________________________ 99

Factsheet 1. Brief chronological overview of the concept of digital sovereignty in EU

Factsheet 2. Annotations to the current main EU infrastructure strategies concerning digital

Factsheet 3. Annotations to key EU regulations and institutional strategies and policies

Factsheet 4. Chronological timeline of the right to secrecy of correspondence (inviolability of

Factsheet 6. Aspects related to EU strategies on investment for democratic digitalisation (1)

Factsheet 7. Aspects related to EU strategies on investment for democratic digitalisation (2)

1. Introduction - Statement of intent and objectives of the

Digital transformation and human rights: cooperation and

Internet - Digital - Network - Disintermediation + Transparency - Access to information -

Source: Baran, P. (1964). On Distributed Communications: I. Introduction to Distributed

Figure 2: Imbalanced influences in policy making

Digitalisation, accelerated by the COVID-19 pandemic 32, 33, is ongoing.

Figure 3: The COVID-19 crisis has accelerated the digitalization

Digital transformation and human rights: societal and

Figure 4: Example of imbalanced distribution of ownership of technology

Privacy is the core starting point of this schema.

Framework of the report

But this is only the second layer of digitalisation.

Figure 5: Layers to be considered for a democratic and sovereign digitalisation

Source: The authors own elaboration.

London: Yale University Press. 528 pp. https://doi.org/10.1177/1084713807301373 pp.

Small and Medium-sized Enterprises (SMEs); by sacrificing innovation as valuable and

Figure 6: Needs for everyday life sovereign digitalisation of society