098 Mark Dempsey and digital activism fatigue

We sat down with Mark Dempsey, a Senior EU Advocacy Officer for global free speech organization ARTICLE 19.

Prior to ARTICLE 19, Mark consulted for the European Commission on a project focused on data protection laws in non-EU countries. ARTICLE 19’S work in Brussels is driven by the goal of ensuring that the European information environment is free, fair, accessible, inclusive and decentralized.

During our conversation we touched on the current regulatory frameworks within the EU, digital activism fatigue, the role of the end-user and the omni-present role of digital technologies and services that need to be put in check by regulation.

Transcript of the episode:

Expand the transcript
00:00:06 Domen Savič / Citizen D

Welcome everybody. It’s the 5th of April 2024, but you’re listening to this Citizen D podcast episode on the 15th of April same year with us today is Mark Dempsy, Senior EU advocacy officer for Global Free Speech organization, Article 19.

Prior to Article 19, Mark consulted for the European Commission on the project focused on data protection laws and in non-EU countries, and even before that, Mark, you’ve worked in the financial sector. Is that right?

00:00:39 Mark Dempsey / Article 19

Yeah, correct. Correct. Yeah.

00:00:41 Domen Savič / Citizen D

Before we start our conversation, I just want to know what made you switch from the financial sector to digital rights, which one is worse?

00:00:53 Mark Dempsey / Article 19

Which one is worse is a funny way of putting it. So, I worked for a long time in development, finance, and then regulatory finance. And I was an EU policy advisor for the Financial Conduct Authority in London, where I would go to Brussels, and I’d sit in Council working groups discussing nascent proposed legislative proposals from the Commission and I think really what made me make the move is an awareness of the growing encroachment of big tech on our lives and the controlling of the narratives.

Not just in the sort of public space perspective, but also commercially and the reliance of so many businesses like Amazon, Google, etcetera controlled the various data flows and the commercial relationship?

So it was, it was the encroachment of big tech in our lives. But it was also the realization that there was there was an extent of regulatory capture in finance, which was never going to change.

And I think coming from Ireland, seeing the financial crisis and the way taxpayers have basically footed the whole bill, no one in the US went to jail, there is still this aura of invincibility around finance and I just became, I think, quite disillusioned really and it was very hard to see the tangible effects of regulation to people on the street, and I felt that digital rights was more of an area where I could make more of a difference, so I took the time out to go to Hertie and to do a masters.

And I was lucky to work closely with Joanna Bryson, who has this unique view as a technologist, where she looks at society and the human rights impact and the digital rights that come attached to it. So, I think though she was a bit of an inspiration.

I’m sure she’d like it; she’d be heartened to hear that. And then, of course, there was such a huge avalanche, as you say, of regulation in the EU and it felt like a very good moment to be involved, even if I did come in a little bit late. When I came into the DMA/DSA in terms in terms of their negotiations were being finalized as I joined Article 19, but the GDPR, of course was a good experience with them. The Commission was a good learning experience and set me up nicely for the Article 19 role.

And where of course I came straight into the European Media Freedom Act, which was in the middle of negotiations, which in itself is a is a fascinating piece of legislation which we can talk about later.

00:03:32 Domen Savič / Citizen D

Sure. Because my next question would be exactly that, right. So, the EU Commission mandate is wrapping up, they’ve done a ton of work in terms of regulatory proposals or regulatory laws in terms of digital rights.

You’ve mentioned in the DSA the DMA, the European Media Freedom Act previously the GDPR. Is this the right way or are we heading in the right direction with these proposals or with these laws that are that are, as you’ve mentioned, focusing on big tech on, on intermediaries, on everything that’s happening in, in the, in the digital world right now?

00:04:12 Mark Dempsey / Article 19

I mean, I don’t know whether I’m the right person to ask. That question is is in itself questionable. I think the EU can be commended for making the first move and I know that they sometimes get criticized as being mainly regulatory cage, so to speak, and that they seem to specialize more in regulation. But that’s because they do have this immense capacity of civil servants within the Commission.

If we’re going in the right direction, it’s too early to tell. I mean what is disappointing is that the process of agreeing proposals ultimately at the end of the trilogue is still very non-transparent, and I think with the EMFA, with the DSA probably less so the DMA, there were agreements made, or at least there were. There were positions for justice by the Council at the end, which undermines the initial legislative proposals, so I think that process is simply, it shouldn’t be tenable anymore, but I think it probably will be because I don’t see any changes happening.

So we are dependent very much on a strong Parliament, and you’re very dependent on having your champions in Parliament to push the civil rights aspects of any legislation. But if you don’t have those people, they go into the rapporteur, for example, I, the person who oversees the file, if they go into final negotiations and they’re not particularly, how do you say, favorable towards civil civil rights, then our position is severely weakened.

So I think the proof will be in the pudding in terms of enforcement, I mean again, and I know for some they’ve heard this ad nauseam, but this all lies in the enforcement and particularly with these new legislative pieces that have come in.

There are mechanisms which gives the EU a strong regulatory position, so they are going to be regulators for DSA/DMA, AI act and we just have to see how that plays out.

I mean, the GDPR has been a lesson for the EU, I think they realized that. So, let’s see if they put the right resources work closely with civil society actors and that look, that will all happen in the next couple of years. And then it’s a case of understanding how all these pieces of legislation interact with each other.

I mean there could be unintended consequences, they’ll have to work very closely. The different units, like the G Connect to GG comp. The new AI office. They’ll have to work very closely together and coordinate and in a non-siloed fashion and I think the EU is not known for our coordinating well amongst different units. Things tend to be quite silent, so iit’s really up in the air as to whether as to where all this goes.

But I do go back to commending the EU for at least taking the step because, I mean the US, you don’t even have a federal privacy law, so I think certain states as we know like California,  they’ve learned from the GDPR and they’ve created their own strong privacy laws, but I think the EU is really being the first mover here, but I think they tend to love saying that and praise themselves. But we’re beyond that now, now it’s about whether they can actually enforce.

00:07:45 Domen Savič / Citizen D

OK, I’m going to, I’m going to flip the question and ask you a little bit differently, so, is there a a phenomena or is there a, let’s say a mistake in the field that should be corrected by these EU legislative regulatory frameworks?

And if they don’t do it, then it it will sort of signal that the regulatory framework has I guess I could say failed in in in its attempt?

00:08:20 Mark Dempsey / Article 19

Well, something that Article 19 is looking at is the concentration of market power, so if the DMA doesn’t do what it’s supposed to do then I think we will have an issue. You could say that that particular piece of legislation will have failed.

I mean the whole point of it is to create fair and contestable markets and that means ultimately as well opening up these platforms, and I think there are avenues within the legislation to do that.

But the Commission hasn’t mandated that so far yet.For example, if they were to open up recommender systems, for example, and allow third party recommended systems into your social media feeds, I think that would be something that would certainly disrupt the business models and provide the choice which the DMA proposes to do.

So, I think that there are ways for them to decide that something is not working and therefore we will have to make some fundamental changes to the business models to make sure that these markets are fairer, more open and more contestable.

But again, this all goes down to a certain level of political will and the second level of courageous leadership. Because if you look at the, if you look at the parallels of finance, those steps weren’t taken, I mean that there wasn’t political courage to say.

You have these large institutions which are deemed too big to fail, but post financial crisis, there has to be ways of breaking them up so they don’t have a dominant position in the market. And if you look at your Goldman Sachs and you look at the the large American banks, they’re still making remarkable profits and their share prices have held and gone up and the level of pay compensation that executives get is just absurd when you compare the ratios going back over the decades.

00:10:22 Domen Savič / Citizen D

Would you say that’s something that compares or that’s something that is similar between  the financial and the big tech industry or area in terms of big players positions that do not change no matter what because politicians that are afraid of them?

I used to say that politicians are in love with intermediaries, with big tech giants and they don’t want to hurt their lovers in a way, so they dance around them and sort of not face enough pressure from the public. They know they usually do something small and say OK we’ve done our job and now the rest is on the end users.

00:11:11 Mark Dempsey / Article 19

Yeah, I think there’s actually absolutely an element of that. I mean, unfortunately it seems to be sort of human nature that there is this admiration for the ability to make money, so when an executive from a big tech firm walks in, there’s fawning over that person, and that is definitely a parallel that exists for the banking sector.

I mean, we need legislators and regulators to think about how are these companies improving society and I think it’s quite clear they’ve been doing the opposite for some time on so many different levels, not least when it comes to undermine democracy.

But still, when we you’re not getting that forceful language by regulators to change this, yeah, the regulation is the regulatory proposals to the DMA they say are a step, but really that’s all they are and I think the DSA is probably more limited in what it can do than the DMA. But there is a huge cultural shift that needs to happen, and it’s admittedly difficult because they’re entrenched monopolies at this point and it’s hard to change that.

It means that to change that, you have to disrupt business models and that take that will take a certain amount of strong leadership and willingness to push against the grain of the usual argument of, you know, innovation is being stymied by regulation. I mean, none of this is proven and when you have… I mean there are so many incidents that have happened as a result of big tech and then of course you’ve got AI and AI adds a whole new component because they’ve already started reinforcing their dominant positions by forging partnerships, which are basically acquisitions and taking over all the all, all the staff of the company that they’re going to partnership with and I know then that there’s investigations into this.

But yeah, does it bode well for the future? I think it’s hard to say that it does at the moment given how how quickly generative AI seems to have become something that’s again completely been taken over by big tech.

00:13:23 Domen Savič / Citizen D

Speaking about the big tech and you’ve mentioned GDPR in in the beginning, so yeah, another interesting party, so to say in this fight is the end user right? So you’ve had the GDPR put complete control over our own data into our own hands and you know, that proved a bit of a challenge for people not being used to be in the driving seat. So on the other side, you have these big tech giants, you already mentioned these firms that are that are that’s basically a a monopoly, if we’re lucky… So how do you see the role of the individual user moving forward?

Should we as activists sort of try to move away from this logic that we have to empower the people and everything else will follow and focus more democratic institutions and more on the systemic players?

00:14:29 Mark Dempsey / Article 19

Yeah, I think we absolutely want to focus more on the systemic players because, has GDPR ever worked? I mean has more people understood the value of their personal data… I mean, that’s really the question, right? And I’m not sure that they have, I mean that there’s the whole cookie fatigue, there’s the determined services, there’s the ability for big tech to hover up data in a transaction which no money is transferred.

They’ve managed to to yet again control that sort of transaction and I think the question is always like how do you get people to value their personal data, what needs to be change to have a simpler choice?

I mean cookie fatigue; we all know that a very small proportion of people actually go to each of the cookie options and then decide to reject them all. I mean, as digital activists were still very much a minority when it comes to valuing personal data, yeah, there needs to be systemic changes made beyond the idiosyncrasies of GDPR.

I mean I could flip the question back to you, right? I know you are interviewing me for this podcast, but I’d be kind of curious to hear what you think on that as well.

00:15:59 Domen Savič / Citizen D

I mean… So my first campaign was back in, what was it, 2012? I think we’ve organized the the first anti ACTA protest in in the country and and back then, the field was very, you know diluted, you had you had different lawyers and let’s say tech engineers working on this subject and they came together saying, you know, well, this ACTA thing is really troublesome and we have to pull our weights together.

But then afterwards they sort of drifted off in into their own, you know, spheres and this is something that was to me, a signal that, OK, we need more of a focused pressure on these issues because putting together a coalition just to have it fall apart after the fact, it’s not very effective, right?

You can’t do that every time. And then then it was like from 2015 to 2018, yeah, exactly to the to the GDPR, it was this, I’m going to call it the golden era for activism, where you had small individual fights popping up and you could, you know, hammer them down individually on your own by motivating the crowd every time something came along now.

And moving forward, you said it with with the AI and everything, I don’t see NGOs or activists being the right way to fight, because there’s just too much of everything, it’s happening constantly.

It’s on all the time and at the same time people, you know you, you don’t have the time, the energy, the funds to sort of brief the people in real time about these issues and encourage them to sort of go against the big tech or the bad players in.

And this is something that, that, that was very memorable to me when we met in Brussels recently and you spoke about the digital fatigue right and I love the term, because I was, you know, I am in the process of questioning that that very same question, that this is just untenable moving forward.

Like, are we just, you know, destroying our health and whatever you know, because there’s just too much of everything and at the same time, there’s a very asynchronous feeling to the field that you said before in the trialogue and everything.

You know, it all goes someplace you don’t want it to go right and you have no influence over the…

00:19:04 Mark Dempsey / Article 19

Yeah… And I mean, you’re absolutely right. I mean, digital fatigue is… things have changed so quickly, the results in terms of flops, civil society is looking for are relatively minimal, so of course there’s a level of cynicism, skepticism that creeps into the conversation, that brings to the question like, how do you mobilize civil society to be as effective as possible? Like why are we choosing our battles wrong? Are we, are we choosing too many battles?

I think we must fight on. I mean I think we have to… there has been success successes, they have and there’s definitely a growing awareness of what civil society can bring to the table, at least within this EU bubble, but it is a challenge to bring about a culture where fundamental rights and everything that encompasses become a serious part of the conversation. And if you look at the DSA, we have been pushing the Commission to create a sort of more formal structure or a forum for CSOs to have a regular dialogue with the Commission, and we’ve had one or two workshops, but nothing has been formalized yet. But.

I think they realize that, one, they don’t really have all the capacity that they need and that the CSO community, along with the academic community and all the various researchers attached to it, bring a huge amount of expertise, and I think with the DSA, a lot of this hinges on the provision which allows for data access.

If that process happens properly, which is obviously not at all guaranteed, because I mean there will be ways which Facebook and Google use this process as a means of further controlling access to data. Yes, they give access to data, but it will be a long, laborious process till they get to that point where you can access it. And I think this is why the Commission really has to come in quite strongly and make sure that this access happens relatively seamlessly and to a wide number of people, so the right research can be done.

So I think there are elements of hope there which should make our job easier, but ultimately, as long as they’re considering their bottom line, I the platforms they will be doing their best to make sure that that isn’t the case, but there’s the twin goal of making sure that people beyond our community understand what their fundamental rights are when it comes to the platforms.

Then there’s the bringing in the culture and the common and the digital services can either reflect fundamental rights, how they need to be respected and how they can do that as quasi regulatory gatekeepers.

But I mean, I think the digital fatigue also comes comes purely from the fact that you have all this change happening extremely quickly in the private sector side along with this huge number of legislative proposals which are very dense and no one still knows how they work with each other.

So that’s where you got to take a step back holistically and understand the consequences of each piece of legislation. But then of course, there’s all the case law that’s going to naturally follow an that case, though, will be very important.

But again, that’s a slow process as well.

00:22:42 Domen Savič / Citizen D

True, yeah…I mean, I wasn’t trying to sound like defeatist, I just realized very, very soon that that in this area, like in the digital rights, you always have to question yourself from time to time just to sort of open up to, to new ideas or to new venues or to new approaches.

00:23:04 Mark Dempsey / Article 19

I keep referring to the EU public and the EU is really a bubble, there is not nearly enough voices being brought into the conversations in the global South, for example, and that’s a whole different discussion.

But as we both know, there is a huge amount of data exploitation happening when it comes to the building of data centers in Kenya, for example, and the lack of frameworks to properly control power, the large platforms are working in local economies such as that of Kenya or in other African countries, there’s a there’s basically no governance framework there whatsoever and that doesn’t get discussed enough.

And then of course the sort of the far-reaching consequences of the EU’s digital proposals, the so-called buses, in fact, but there are negatives negative externalities, which the Commission is is presumably becoming more aware of, but as more players from the global South get brought into the conversation and I think with Article 19, the European work is a very, very small piece because ultimately it’s a global organization which is working and protecting journalists in Mexico, Brazil, where arguably its work is more impactful, because then there’s a much greater need to do something now because of the actions of government, which tend to be more imposing themselves and the people in negative ways, which largely isn’t the case, and bar a few countries in in the EU.

00:24:53 Domen Savič / Citizen D

Do you think that’s a good aspect of, this is going to sound weird, of areas, of countries that do not have formal regulation in place? So do you think activists can do more in the jungle than in the urban centers where everything is written down and stamped and approved? And yeah, you have all these institutions that are supposedly there to help you, but in practice…

00:25:29 Mark Dempsey / Article 19

Yeah, it’s just an interesting question, what I suppose they can learn from the failures of… I mean do they have more opportunities to change things quicker? Possibly. Possibly. I mean, I’d have to think of an example.

00:25:56 Domen Savič / Citizen D

Yeah, I mean just just looking at at everything that’s happened in in the last, 10 years, I remember a couple of instances where you had working in inside the EU or working to change the EU proposals but you’ve often realised that the length of the process, when you have the a very narrow window of impacting the legal frameworks or the regulatory process and then, you know, two years go by, three years go by and this law comes into power and then everybody’s like, wondering, yo, what’s this?

And then you go well, remember, like, three years back when you said it was nothing and we said it was a big thing and you should act on it then. Well, this is it, right?

So, I’m thinking the whole systemic legal, the length of the process sort of you know helps the bad guys to sort of have the upper hand while activists are battling from day-to-day and then realizing that OK, now we have 2 years of nothing before people realize what’s going on in the first place, right?

00:27:26 Mark Dempsey / Article 19

Yeah. I mean, are you speaking to the the sort of speed of how things change? And then by the time it becomes law, it’s more or less, I wouldn’t say outdated, but less relevant than it might be?

00:27:36 Domen Savič / Citizen D

So there’s that, and there’s also the whole legal process or the regulatory framework process takes so much time that people lose attention in between or people stop following the issue and then realize after everything’s done that, whoops, this is something we should pay attention to two years ago.

00:28:00 Mark Dempsey / Article 19

I mean, I think it’s very hard to have a fast regulatory or a fast legal process, right? Because whatever one says about democratic deficits, I do think way the Parliament is structured and the various committees and the rapporteurs and the champions, I think it’s actually quite a good process.

I mean I think that the level of detail that one is forced to go into to have a provision the way you want it to be, I think it’s actually not bad. I think it’s just the trialogue process that really can become very deflating and I think again it sort of comes down to strong personalities who care about what we care about being in the position to push back against the Member States. And then of course, as the voting modalities, I mean in Council, it’s generally anonymity and then there’s this horse trading that’s done, for example, when Poland was in, was leaning towards an autocracy, you had it supporting Hungary at different junctures. And then of course when that starts happening that it reminds the initial piece of legislation.

So I think  there are real changes that need to be made in voting modalities and how the trial logs operate. But I think as I said before, it’s it’s hard to envisage that happening.

00:29:30 Domen Savič / Citizen D

Before we wrap up and you’ve mentioned Poland and Hungary and this perfectly segues into the into the last piece of of the conversation. So, so you’ve mentioned it before the the European Media Freedom Act.

How’s that going? Yeah, in terms of, when will we or can we actually already see some movements in in this area regarding the effectiveness, the usefulness of this proposal or is this something that is again ruined, so to say, by the trilogue, by exemptions, by doing everything and nothing at the same time?

00:30:14 Mark Dempsey / Article 19

I think it’s the the eventual outcome certainly wasn’t what we as a civil society activists would have liked. I think for some, it’s a bit late. I think it will be interesting to see how the Commission reacts to what’s happening in Slovakia, because arguably it’s already acting against the spirit of the regulation, which is on the statute book, so it’s effectively… they need to be acting with the letter of the law, or at least the spirit of the regulation and they’re not.

So I think the Commission has to come down quite hard and fast to stop Slovakia going down the route of Hungary. I think it’s a piece of legislation, it was always going to be very difficult because you’re bringing together a huge number of actors and you’re regulating media in ways that you didn’t do before from a European level.

I think the juries out. I mean again… you have this new European Board of Media services, you’ve got a lot of responsibility on the national regulators, the Commission has to make sure that there’s a proper effective, well resourced secretariat in place to service the board and my understanding is that none of these are European level. There’s still a lot of institutional building to be done to make sure that all these are properly in place.

I honestly it’s difficult for me to say how this is going to work out, but I think it… on a very on a basic level, it’s good that it’s there, that the law is now is now in place and there are there are elements of law, like the Merger Assessment test, to retain plurality and make sure the media freedom stays in place and that mergers don’t just happen without other economic avenues being sought to make sure that this an independent media outlet can exist independently.

Uh, I think it’s great that they’re there, but it’s going to be interesting to see how such a complicated regulation can be properly enforced and again, the Commission has put itself in a position where it’s sort of in the eye of the storm.

That if these regulations which largely… they are there to protect democracy, particularly the Media Freedom Act, don’t work as intended, I think they’ll really end up undermining themselves in a big way. So again, if we have, with the impending elections and you’ve got a right leaning Parliame, at least these legislative pieces are there, but have you still got a right leaning Parliament and not strong leadership in the Commission, these won’t be particularly effective.

00:33:08 Domen Savič / Citizen D

Yeah, this was actually going to be my wrap up question to this debate and it’s all very interesting so we’re coming into this, pre election or pre pre election cycle for the European Parliament and I was wondering to hear your thoughts on how should we, let’s say, as NGOs, but also maybe as as journalists or as media, as public opinion shapers, how should we frame the the issue of of digital rights?

What is the difference, talking about digital rights now compared to, let’s say, the last the last pre election pre election cycle that happened 2018, 2019?

So what should we change to sort of bring more impact to these topics and not just brush them away as “these are kids on TikTok topics”?

00:34:07 Mark Dempsey / Article 19

So I’m going to like, I feel quite strongly that the way over the last five years, digital has become even more… it’s become a much an even stronger part of our daily lives. It’s everywhere. I mean it’s remarkable how it’s intertwined in everything we do, and arguably it already was in 2019, but even more so now.

So for me, digital rights cannot be something that is apolitical, I think digital rights has to be has to become explicitly political and what do I mean by that?

I mean that if we look at what is happening in Gaza, if we look at the +972 media outlet article the other day about the use of AI when it comes to targeting civilians in Gaza, much of that AI was designed by platforms like Google.

There is a complete lack of accountability when it comes to the interaction of geopolitics and the platforms role in it. So I think that as digital rights activists, we have to start embracing the political implications of this and calling out the platforms for involving themselves in conflict, for example.

Because in conflict you’re taking sides, so these are not neutral actors and I think as digital rights activists, this is something we need to become much more involved in.

And yes, it’s more, it’s of course more sensitive and of course it has to be more nuanced, but I think that there’s a leadership role there to be taken by digital rights bodies and communities and at least having that conversation with geopolitical actors.

I think that for me, that’s the major gap that exists and that was for me that was very much highlighted when it came to what’s happening in Gaza.

00:36:07 Domen Savič / Citizen D

Yeah, that sounds perfect, thank you Mark for the pleasure, this was this was really interesting, lovely to to talk to you. Best of luck going forward and hope to see you again sometime in person.

00:36:23 Mark Dempsey / Article 19

Thank you very much and pleasure. I really enjoyed this. And yeah, there’s lots we could talk about even further, of course. But yeah, see you next in Brussels.

Citizen D advice:

  • Politicize technology and digital services
  • Connect the individual active user with systemic safe-guards and authorities
  • Rethink the role of digital activists

More information:

  • Joanna Bryson: The Past Decade and Future of AI’s Impact on Society  – pdf
  • Article19: Watching the Watchmen – pdf
  • Taming Big Tech: a pro-competitive solution to protect freedom of expression – pdf
  • When bodies become data: Biometric technologies and free expression – pdf

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