This paper aims to investigate the extraterritorial effect of EU law looking at the caselaw of the ECJ and how the balancing process of rights developed by the Court is impacting on the third countries’ digital sovereignty. In this perspective, the digital privacy is probably the best-case study for analysing the European “imperialism” on the Internet, but it is not the only one. The EU approach to digital privacy seems to be embraced by the EU Court of Justice also in the free speech field, inaugurating new eventual trends in this perennial conflict between different digital sovereignties on the Web. In this context, this work analyses the legal framework of the extraterritorial effect of EU law concerning privacy and explores the most recent trends focusing on Cnil v. Google and Glawischnig-Piesczek v. Facebook. The aim is to understand if in the framework of EU policies these last decisions could be herald of a new field in which digital imperialism could take shape.
According to various indexes, out of a total world population of 7.7 billions people, there are 5.1 billions mobile phones, 4.5 billions internet users and 3.8 billions social media users. A “digital nation”, apparently without “old-fashioned” common rules or written constitution, but “united in their diversity”, or made “ex pluribus unum”, within a new “technological polis”. This “tecno-pòlis” is not characterized (mainly) by a legal constitution, rather by a technological infrastructure, In this global landscape, the main actors are not anymore ‘public' authorities, but private corporations (the so-called Big-Tech), owners/sellers of the digital infrastructure; the Fathers of tecno-constitution. Therefore, which are the new “constitutional” features of that new “followers” nation? Which role does constitutional law play in building a global governance of that digital nation? Which kind of international legal status must we recognize to those new private powers.
A growing number of public services are becoming digital. However, not all citizens have the literacy, financial means or physical capacity to engage with digital technology in the same way. This concern is particularly visible among vulnerable groups of citizens who mistrust digitization and the growing dehumanization of public services and public law. In an attempt to improve the trust of citizens in digital governments, some countries have tried to develop new policies to ensure that citizens are not sanctioned for not being able to engage with digital services. The French legislator has even recognized a right to make a one-time mistake, provided lists of common online/offline mistakes, and sought the input of citizens for the digitization process. This paper inquires whether this lenient approach to administrative law could promote inclusion in the digital age and could be adopted in other countries in an attempt to increase the trust of citizens in digital government.
Legal pluralism, embedded in the trans-jurisdictional character of networks, is a risk and a safeguard. This paper analyzes this tension by addressing three theaters where a jurisdiction is affect the laws of others. The first captures attempts to control jurisdiction via terms-of-service clauses. Such clauses may clash with traditional public law grounds for jurisdiction, as is revealed by recent litigation in Canada. Other attempts include data-localization instruments, which themselves may be pluralized, thus causing tensions. Central to the second theater is the clash of Public-Private legal regimes, stemming from recent recourse to private law litigation to check deployment of offensive malware. As the Facebook-NSO dispute reveals, such litigation pluralizes public rights in peculiar manner. The last facet relates to variations on the regime applicable to the export and import of dual-use cyber products. The plurality of approaches in this context is also a cause for concern.