The data in the Digital Charter of Rights

Just a few days ago has been officially presented the Digital Charter of Rights. It is an initiative that has had a wide representation of civil society since, on the one hand, a wide and diverse work team has been in charge of its drafting and, on the other, during the procedure of its preparation a public participation procedure so that the appropriate proposals and observations could be made from civil society.

What is the value of the charter?

In recent years, important advances have been made in Spain in regulating the use of technology in various fields. This has happened, for example, with the use of electronic means by Public Administrations, the protection of personal data, electronic trust services, the digital transformation of the financial sector or, without being exhaustive, the conditions for remote work. Numerous regulatory initiatives have also been promoted by the European Union in which the use of data plays a very relevant role. Among them are theDirective (EU) 2019/770 of the European Parliament and of the Council, of May 20, 2019, relating to certain aspects of the contracts for the supply of digital content and services, and the Directive 1024/2019, on open data and reuse of public sector information. Even, in the immediate future, the approval of two European regulations on data governance and Artificial intelligence, projects directly related to EU Digital Strategy which is promoted by the European Commission.

Given this panorama of intense normative production, it could be considered to what extent a new initiative such as the one represented by this Charter. In the first place, it must be emphasized that, unlike those previously mentioned, the Charter is not a legal norm in the strict sense, that is, it does not add new obligations and, therefore, its provisions lack normative value. In fact, as expressly stated in it, its objective is not "to discover digital rights by pretending that they are something different from the fundamental rights already recognized or that new technologies and the digital ecosystem are erected by definition as a source of new rights" but, rather, "outline the most relevant in the environment and digital spaces or describe the instrumental or auxiliary rights of the former."

Beyond the non-existent legal scope of its content, the Charter aims to highlight the impact and consequences that digital scenarios pose for the effectiveness of rights and freedoms, thus suggesting some guidelines in the face of the new challenges that said technological context poses for the interpretation and application of rights today, but also in their more immediate future evolution, which can already be predicted. Taking into account these claims, the call for regulatory compliance from the design in digital environments acquires singular relevance (section I.4),

What is the prominence that the Charter has given to data?

With regard to the digital rights of citizens in their relations with Public Administrations, in Section 3 (Rights of participation and conformation of the public space) some provisions have been established where the protagonism of the data is unquestionable (Section XVIII) :

• Thus, it is established that the principle of transparency and reuse of public sector data will guide the actions of the digital Administration, although its scope is conditioned by what the applicable regulations establish. In any case, this principle is reinforced with the promotion of publicity and accountability. Likewise, the portability of the data and the interoperability of the formats, systems and applications will be ensured, in the terms provided by the current legal system. Specifically (Section 5, Section XXI), the use for the common good of personal and non-personal data, whether they come from the public or private sector, is recognized, including among the purposes the archive in the public interest, research, statistics , as well as innovation and development. In this sense,
• The importance of transparency about the use of artificial intelligence instruments is also emphasized, in particular, about the data used, its margin of error, its scope of application and its decision-making or non-decision-making nature. Beyond its incidence in the public sector, non-discrimination regarding the use of data is generally prohibited (Section 5, Section XXV), and adequate conditions of transparency, auditability, explicability, traceability, supervision must be established. human rights and governance.
• Likewise, the need to carry out an impact assessment on digital rights is established when designing algorithms in the case of automated or semi-automated decision-making. It therefore seems inexcusable that such an evaluation pays special attention to the biases that may occur with regard to the data used and the treatment that may be carried out in the decision-making process. Impact assessment from the perspective of ethical principles and rights related to artificial intelligence is also specifically contemplated for the workplace (Section 4, Section XIX), with special attention to eventual discrimination and conciliation rights.
• Singular importance is given to the need for the Administrations to offer an understandable motivation in natural language for the decisions they adopt using digital means, having to justify especially what criteria for applying the standards have been used and, therefore, the data that have been used. been able to handle to that effect.
• With regard specifically to the health system (Section 5, Section XXIII), on the one hand, it is required to ensure interoperability, access and portability of patient information and, in relation to technological devices developed for therapeutic purposes or care, an attempt is made to prevent its free use from being conditioned on the transfer of the patient's personal data.

Thus, although the Charter of Digital Rights does not incorporate legal obligations by itself, it nevertheless offers interpretive criteria that may be relevant in the process of interpretation and application of the current legislative framework, as well as serve as guidance when promoting future regulatory projects.

On the other hand, even when it does not establish legally enforceable rights, its content establishes relevant measures aimed at the public powers, in particular with regard to the General State Administration and the entities of the state public sector since, ultimately, It is an initiative promoted and formally assumed by the state government.

In short, their forecasts are of particular importance with regard to open data and the reuse of public sector information given that in the coming months important regulations will have to be approved both at the state and European level, so that the content of the Charter can acquire a singular role in the development and application of these norms.

Content written by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

The contents and points of view reflected in this publication are the sole responsibility of its author.