What does it mean to be an EU citizen since the EU is not a country? A question like that misunderstands citizenship, the EU and not just the underlying democratic structures of the EU but the very nature of democracy itself. At its heart it’s a question about how we can live together in the latter 20th and early 21st century without resorting to wars between states that historically have torn the world apart.
I was introduced to someone who understood and promoted the democracy of the EU by Helen De Cruz. Helen holds the Danforth Chair in the Humanities at Saint Louis University. It was her predecessor James Bohman who wrote about, as Helen put it, ‘a new conception of democracy beyond the old idea of nation states, a transnational concept. The main idea here is that democracy should no longer be thought in the singular as rule by the people (dêmos), singular, with a specific territorial identification and connotation, but as rule by peoples (dêmoi), across national boundaries’ … in other words, diversity within a Union.
James Bohman (Photo Brown University Library)
It seems ironic to me that Helen, an EU citizen, is now teaching at SLU, where James, an American was writing about the EU! Jim Bohman died on 9th January 2021, and sharing some of his thoughts is by way of obituary to him and his encouragement of our European project.
Bohman was clear that one of the first things to remember is that the EU is an ongoing project, it is a commitment to ‘bringing the peoples of Europe together in a closer Union’. It is a work in progress not a complete and completed political entity. It is also something new within the world, and as such some of the words and concepts thought of as defining things, for example the word democracy, are inadequate for this project. Redefining words like democracy create warmth and excitement for some and fear for others. It’s not that democracy will be eliminated, far from it, but a new bigger and better form more appropriate to the 21st century is emerging.
He was keen that the EU should continue to promote innovation in its structures and not try to replicate a typical modern nation-state. He is arguing that not only is the EU not a country but it should not try to become one. He saw the purpose of the EU as ‘fundamentally republican and [one that] can be formulated in terms of the proper normative relations between freedom and interdependence.’ Indeed, freedom and interdependence are two words we cherish as EU citizens.
He argues that larger geopolitical entities based on non-domination of others create more democratic representation for smaller dêmoi than small ones do. That our member states range from less than half a million to over 80 million demonstrates this. Any of those member states may use their veto within certain criteria. Even a single province of Belgium ended up vetoing the entire EU-USA trade agreement! As he puts it, ‘It can be shown that existing practices of the EU exhibit particular institutional structures of cooperation to take advantage of the dispersal of power and deliberation in multi-levelled and polycentric polities.’
In this new supranational entity of the European Union the constitutional rule of law is not about limiting the possibility of tyranny but within the Union, it is about limiting domination.
Bohman argues that ‘European practices of governance are already “heterarchical”: authority is neither centralized nor decentralized, but shared.’ Thus ‘More than simply adding a layer of authority, it is rather a matter of redefining the relationship among the local, the national, and the supranational levels of scale.’
Immanuel Kant
Critics of the EU see it as close to the 18th century philosopher Immanuel Kant’s global cosmopolitan political community which he described as ‘soulless despotism’. However, the EU is far from this because, as Bohman states, a modern cosmopolitan political community should not be organised in a state like manner and indeed the EU is not! Those criticising are often trying to evaluate using state like models. Although the European Commission might appear to be the faceless bureaucrats of a civil service it is not in reality a larger scale replication of a typical modern state.
The European Union is an exciting yet safe place for its citizens. It is leading the world in demonstrating a new way to do democracy, not abolishing the nation-state nor removing the unique cultures of them but creating a 21st century way forward. Of course it’s not perfect, no human institution ever is, but it has the possibility of being a model for other parts of our world based on a solid philosophical base.
Helen De Cruz summed it up: ‘Bohman’s work in any case shows how important nuanced philosophical thought is for figuring out how to live together. In fact, it’s not that philosophy is some add-on. It’s always there, it’s what Mary Midgley calls the “philosophical plumbing” of our societies. If we’re unreflective of the plumbing, then our societies will deteriorate. I loved how Bohman, who didn’t live in the EU helped to think how the EU could realize its ideals best.’
Talos is a new platform to help facilitate positive change within the European Union. This is a citzens driven initiative by a group of young people – students at University College London (UCL). Their aim is to provide an online platform through which EU citizens can propose reforms, which can lead to institutionalised change within the European Union.
Article 227 of the Treaty of Functioning of the European Union guarantees the fundamental right of EU citizens to petition European Parliament. The e-petition system allows us to raise awareness and request solutions to our challenges.
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Union’s fields of activity and which affects him, her or it directly.
Article 227 of TEU
However, since it’s introduction a lot has changed and Talos seeks to be a step between grass roots movements of citizens within the EU and some of the political structures of the EU.
As EU citizens is GDPR blessing or curse? Does it, as one writer put it, ‘look like bad news for free expression and information access online’? Is it, in effect, creating an online content war between the EU and USA?
My initial reaction to GDPR was twofold I simultaneously felt it was marvelous for me as an EU citizen and a monstrosity for me as a webmaster for me to implement. However, getting to grips with it I found it was not as difficult for me as a webmaster as I first imagined. Most of what was required we were already implementing as ‘best practice’. So my overall impression six months later is that it is really brilliant for us as EU citizens.
Not everyone sees it that way and it has resulted in some negative publicity and some sites in the USA attempting to block EU citizens from accessing their sites. Most of the negative posts appear to misunderstand the intentions and operation of GDPR.
As EU citizens is GDPR blessing or curse? Does it, as one writer put it, ‘look like bad news for free expression and information access online‘? Is it, in effect, creating an online content war between the EU and USA?
GDPR and website visitors
I recently hit my first GDPR/EU blocked website as a result of a friend from the USA posting a link to an article from the New Hampshire Union Leader (UnionLeader.com). This is the website of a New Hampshire news source provided on a non-subscription (free access) basis to members of the public worldwide, but currently partially blocked in the EU. Having very easily bypassed their block and looking at the site, they actually appear to be very close to GDPR compliant hence the block is bizarre to say the least. The reason for some people’s concern is what they consider to be the wider implications of GDPR’s ‘right to be forgotten’. We will come to that later.
New Hampshire Union Leader is providing services without payment and hence does fit within the provisions of GDPR — ‘In order to ensure that natural persons are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union should be subject to this Regulation where the processing activities are related to offering goods or services to such data subjects irrespective of whether connected to a payment.’ GDPR preamble statement number 23
However… although the New Hampshire Union Leader is providing a service without payment as outlined in GDPR preamble statement number 23, it only has offices within the USA and the GDPR is not law of the USA hence there is no method for someone in the EU to take action against this company! Where services (or goods sold) are to EU data subjects for payment then the EU member states can ban the goods or services based on that payment as penalty, if the entity is not directly trading within the EU, or impose punitive penalties on entities trading within the EU. Because New Hampshire Union Leader is neither charging for services nor trading within the EU it falls outside of any method EU member states or EU citizens have of imposing penalties on it.
GDPR Article 3.3 states that GDPR applies only in relation to public international law: ‘This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.’
Public international law is that which covers relations between nation-states, like treaty law, the law of the sea, international criminal law, the laws of war or international humanitarian law, international human rights law, and refugee law. It is possible that international human rights law might apply, but that would apply with or without GDPR.
As a news organisation they may be concerned not about the storage of tracking information but that data subjects might object to the content of news articles written about them. However, GDPR Article 17.3a specifically absolves data controllers from the right to be forgotten ‘for exercising the right of freedom of expression and information’. Any claims about the accuracy of the information published would be covered by existing international copyright law (like the Berne Convention) or libel law which is jurisdiction restricted and therefore civil actions needed to be taken within the country or state concerned. Not so obviously for search engines such as Google who do trade within the EU.
Partially blocking access, means data subjects in the EU can still access it, and data subjects resident in non-EEA member states but who are nevertheless EU citizens can also access it. It is therefore a knee-jerk reaction to something that is easy to comply with.
So what would Union Leader have to do and why would this be onerous rather than best practice?
Firstly the core way that GDPR applies to websites is in the use of cookies and meta cookies, especially the Google meta cookie. As such a website needs to gain consent from visitors to use those cookies and that ‘Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement.’ GDPR preamble statement number 32
The services offered of general news service, with a specific emphasis on the New Hampshire region with the data gathering of tracking information about data subjects does not as such make it ‘sensitive’ and therefore the provision for sensitive information does not apply: ‘Personal data which are, by their nature, particularly sensitive in relation to fundamental rights and freedoms merit specific protection as the context of their processing could create significant risks to the fundamental rights and freedoms.’ GDPR preamble statement number 51.
Within the context of meta-cookies it does require explicit permission — ‘The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.’ GDPR Article 22.1
Alongside the requirement to ask permission to store information (set cookies, gather Google meta data) the website needs to explain clearly and unambiguously what is is doing — ‘The principle of transparency requires that any information addressed to the public or to the data subject be concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used.’ GDPR preamble statement number 58
Finally within this simple context a data subject may retrospectively ask ‘to be forgotten’ which is a function facilitated within data tracking systems like Google Analytics — ‘A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject.’ GDPR preamble statement number 65
The requirement of communicating data breaches (‘The controller should communicate to the data subject a personal data breach, without undue delay, where that personal data breach is likely to result in a high risk to the rights and freedoms of the natural person in order to allow him or her to take the necessary precautions.’ GDPR preamble statement number 86) does not apply since although Google meta-cookies do directly link to data subjects it is not possible for Google Analytics users to reverse track that to an individual data subject to inform them of any data breach.
In other wordsNew Hampshire Union Leader would need to ask permission to store cookies on a visitors computer and only do so if the visitor accepts it. This is relatively trivial to do so and has been common best practice for many years.
They would also have to explain clearly in non-technical language what they were doing. Again not a burden and simple to implement, and something they already do in their Privacy Statement. In their privacy statement they do not say they are using Google-meta cookies so, assuming there statement is accurate, they are actually GDPR compliant already and would need to do nothing except ask permission to store that cookie, though on that there is ambiguity as it doesn’t directly link to a data subject like a Google meta-cookie.
If they used meta cookies like Google Analytics then they would however need to keep a list of meta-cookies that have accepted their terms. This is less trivial but really not onerous. We are a whole lot smaller than the New Hampshire Union Leader and have implemented it without difficulty. And if someone asks to be forgotten remove their meta data information from their Google Analytics account. This very, very rarely happens and is therefore not onerous.
The right to be forgotten
As we grow older and face death many of us wish to be remembered by our children and grand-children so the idea of the ‘right to be forgotten’ may seem strange to say the least. But the aim of that part of GDPR is not to forget all information about someone but the right for EU citizens to request ‘irrelevant’ or ‘out-of-date’ personal information to be removed.
Daphne Keller in an article for politico.eu headlines the new GDPR right to be forgotten as ‘The new, worse ‘right to be forgotten’‘. This follows on from the 2014 court case where the European Court of Justice ruled that EU citizens had the right to prevent search engines from linking websites carrying ‘irrelevant’ or ‘out-of-date’ personal information. That EU citizens can stop search engines linking to ‘irrelevant’ or ‘out-of-date’ personal information should be seen as a blessing rather than a curse and something we should be thankful for as EU citizens!
Daphne writes ‘the new provision looks like bad news for free expression and information access online‘ and, she claims, ‘It is already far too easy for individuals or companies to raise dubious legal claims against content they disagree with, and pressure private Internet platforms to take it down.’
Her belief is that GDPR won’t ‘help the people whose opinions, artwork, news reporting, or other expression vanishes from the Internet‘ due to ‘over-reaching requests‘. One American friend put it as ‘GDPR (is) making it even easier effectively weaponizes litigation to create a media oligarchy.’ Their belief is that this is in part because the EU is left of centre and media sources like the New Hampshire Union Leader are right of centre. In reality, GDPR follows the EU principle of providing a ‘level playing field’.
Daphne is clearly siding with the data controllers rather than the data subjects in stating ‘If we want to protect culture, commentary and creativity online, private Internet companies need the confidence to resist right to be forgotten requests that have no basis in European law.’
But as EU citizens we need the confidence to know that companies will be forced to comply with requests to remove content when it is ‘irrelevant‘ or ‘out-of date‘. This is one of the rights we have as EU citizens!
EU citizenship means that within the European Union the ‘right to free movement’ is actually a lot more than merely the right to free movement but the right to move freely and to enjoy equivalent rights of a national of that country*. Before the EU if someone from one country in Europe moved to another country in Europe then they were legally a migrant and did not enjoy the same rights as nationals. However, since the existence of the EU and when all people became EU citizens then if you move to another country you are not a migrant in that sense because you are an EU citizen and therefore have the same rights as if you were a citizen of that country.
Often we understand the word migrant to mean someone who isn’t a national and therefore doesn’t enjoy the same rights as nationals. But actually migration just means move from one place to another. So in a sense I migrated from South London to near Brighton as a child with my parents, and from there to Birmingham for a job with the BBC. Then I migrated to the USA as a volunteer NGO worker. Then back to Birmingham with the NGO. Then to Cyprus again as a volunteer NGO worker.
Normally we think of migration as permanent movement from one place to another place even though some people we call ‘migrant workers‘, as an example some farm workers, are frequently only temporary or seasonal workers which tends to confuse the way we express things. Really we should call them ‘temporary migrant workers‘.
Countries usually consider what their governments call migrants as foreigners or non-citizens of the country. And that’s where EU citizenship comes into play. When I moved to the USA, I was definitely a foreigner. I was not a citizen of that country nor did I enjoy the same citizenship rights as every USA citizen. For instance, although at that time US citizens were not required to have health insurance I was obligated to have private health insurance and it cost me a lot of money. It was a condition of my visa that I would ‘return home’ at the end of the contract. And in that sense I was a temporary migrant worker.
When we moved to Cyprus 20 years ago, I was a foreigner. Cyprus was not part of the EU. Every year I had to apply for a ‘pink slip’ to allow me and my family to remain on the island. I was obligated to have private health insurance, though the price was a whole lot less than the USA. And every year I had to prove I had sufficient income to remain here. Then when Cyprus joined the EU on 1 May 2004 we as a family felt we had come home. We could enjoy the same rights, obligations and privileges as Cyprus citizens who were also now EU citizens. We really felt we were at home. And this has become our home — we sold our house in the UK and bought one here in Cyprus and we hope for the rest of our lives. In a sense I felt we had changed from ex-pats (temporary relocation with an intention to return ‘home’) to migrants (permanent relocation to a ‘new home’) except that because we are EU citizens it felt more like moving from Brighton to Birmingham within the UK than to another country… so not even migrants.
Many EU citizens have not realised how much EU citizenship relates to freedom of movement and actually adds a whole lot more to it. When you move within the EU from Member State to Member State you are celebrating unity in this amazing continent we dare to call home. You are not a foreigner. You are home.
* equivalent rights of a national of that country — please see a future article about obligations of EU citizens exercising the right of free movement to another Member State
Please tell us about your experiences of living in other Member States of the European Union. And let us know if we can share it on this site.
Talos
