Conference Agenda

Civil society actors play an increasingly prominent role in the protection of digital rights in the EU. Strategic litigation against Big Tech companies is one of the crucial means of furthering their objectives. This article seeks to critically analyse and compare strategic litigation efforts against tech companies with respect to data protection and content moderation. It argues that while the recourse to judicial action by civil society actors varies significantly in different areas of EU digital policy, the recent evolution of the EU regulatory framework on digital services and representative actions is expected to facilitate both strategic litigation and non-judicial means of advocating digital rights. The article begins by emphasising the importance of strategic litigation in fostering accountability of Big Tech. It then examines the legal framework and examples of strategic lawsuits concerning two key practices affecting the exercise of fundamental rights in the digital domain: personal data processing and content moderation. While the article highlights a steadily growing number of data protection cases brought by civil society actors, it also underscores the scarcity of legal actions challenging inadequate or disproportionate moderation practices. Having established this discrepancy, the paper proceeds to explore possible reasons for it by drawing on the literature on legal mobilisation. In doing so, it considers both legal and political opportunities underpinning strategic litigation efforts of civil society actors. In conclusion, the paper reflects on the prospects of strategic litigation of digital rights in the EU.

The paper explores data protection legal mobilisation (‘DPLM’) before the Court of Justice of the EU. It provides a theoretical framework to study DPLM before the CJEU and undertakes, for the first time, a comprehensive mapping of this area. It does so by studying, all the data protection-related judgments delivered by the Court between 2014-2023. The mapping is crucial to shed light on the characteristics and mechanisms of DPLM; it is also needed in order to unveil any potential blind spots of such mobilisation. The paper asks: How can data protection legal mobilisation before the CJEU be understood through general mobilisation debates and theoretical frameworks? What are its main actors, objectives, topics and outcomes? What are its potential neglected aspects and omissions? The article argues that while DPLM as it emerges from our empirical study can be considered a successful story overall; it, nevertheless, appears elitist in its objectives, problems and actors. In this regard, we call for a critical rethinking of DPLM in order to transfer the data protection collective struggles of more marginalised social movements to the CJEU juridical field.

This article seeks to explain the success of litigation strategies pursued by interest groups defending a public interest (hereafter public interest groups). We focus on the sub-field of data transfer between the European Union and the United States, where the Court of Justice of the European Union (CJEU), through rulings indirectly triggered by such groups, has invalidated a Commission’s decision relating to EU-US arrangements (Safe Harbour in 2015, then Privacy Shield in 2020).

How can we explain the success of litigation strategies in this field when many factors pushed in the opposite direction? Answering this question allows us to understand the conditions that lead to successful litigation strategies, especially those pursued by public interest groups, in the European Union and beyond. It may also provide us with an appropriate analytical framework for discussing the likelihood of success of future litigation, now that the Privacy Shield has been replaced by the EU-US Data Privacy Framework. To evaluate the likelihood of litigation successes, we propose an analytical model based on five elements derived from the new institutionalist theory: actors and instruments (rational choice institutionalism), processes (historical institutionalism), context and legitimacy (sociological institutionalism). Although we cannot prove that all five elements are necessary conditions for success, we argue that litigation successes in the cases we studied (the Schrems rulings) were very likely because all five elements were combined, even if the relative weight of each element slightly varied.

This paper examines the place of EU law in the actions of Schrems and his ‘linked’ NGO, None of your Business, ‘NOYB,’ in the context of its predominantly transatlantic nature. Existing literature pays insufficient attention to the narrow focus on Schrems on EU-US data transfers and the ways in which his use of EU law is mostly outside of EU court rooms and also outside of EU lobbying channels. The paper thus focuses upon the place of EU law in the work of Schrems- often take outside of Court rooms and official lobbying channels when challenging EU data transfers- and beyond. The paper draws attention to the links between lobbying and litigation as to EU data transfers and beyond mirrored in the work of NOYB- where little caselaw exists per se- and where broader aims and means are at stake necessitating a broader reach. Civil society similar to Big Tech use a variety of methods to engage with EU law, but not limited to a courtroom per se, amply demonstrated in the work of Schrems and NOYB. The paper also highlights how much scholarship focuses upon the work of Schrems and NOYB as examples of the ‘transnational’ enforcement of EU law. It argues that existing literature easily overlooks the exclusively transatlantic focus of Schrems and the relatively modest number of cases taken by him, less again by NOYB before the CJEU, concentrated elsewhere. The focus upon the ‘locus’ adds to research highlighting the procedural limitations of the EU law system. It supports a broader framing of strategic litigation in understanding data transfers and the broader ‘Brussels effects’ of the work of Schrems.