Guardians of Digital Rights Exploring Strategic Litigation on Data Protection and Content Moderation in the EU

Abstract

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.