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In the digital environment, violations of fundamental rights such as the right to equality and non-discrimination, the right to privacy and the right to data protection are occurring. Most of these violations go unnoticed because either people are not aware of its occurrence, or the harm caused is not considered relevant individually (however, collectively it can have a great impact since it can affect millions of people scattered around the world in the same way). For example, an artificial intelligence system that is used by many companies to select candidates for a job that discriminates against women or non-white people, will do so in a non-obvious way and will affect all the persons subject to its decisions. This system will have a much more widespread impact compared to a person in charge of managing human resources at a company who is biased against women or non-white people, as the scope of their decisions will be much more limited.

Collective action is a legal mechanism that allows defending the common interests of a plurality of people. Although the identification of damages and victims is very complicated in the digital sphere, and this makes it difficult to create groups of injured people, public authorities —having many more human and economic resources to access information, to interrelate affected people, to detect the most relevant violations, and to coordinate with institutions in other countries that also address the same issues— are in a privileged position to lead this type of action. When identifying a fundamental rights violation, public authorities should be able to prevent the current and future use of systems that are causing these violations in the digital environment. This would mean that public authorities assume the search for mechanisms and the responsibility to protect people from the violations of rights they may suffer in the digital sphere (a field where there is a great asymmetry of power between the users and companies facilitating it).

Currently certain European Union law instruments regulate collective action (Directive 2020/1828, which specifically addresses collective action for consumers, Article 80 of the General Data Protection Regulation or Article 86 of the Digital Services Regulation). However, from our perspective, these regulations do not maximize the privileged position of public authorities as guarantors of fundamental rights in the digital environment.