In the last twenty years, the policy of the European Union in the field of digital technologies has shifted from a liberal economic perspective to a constitution-oriented approach. This change of heart has resulted primarily from the rise of the information society which has created not only new opportunities but also challenges to fundamental rights and democratic values. Even more importantly, this technological framework driven by liberal ideas has empowered transnational corporations operating in the digital environment to perform quasi-public functions on a global scale. This article analyses the path and the reasons that have led the European Union to enter a new phase of modern constitutionalism (i.e. digital constitutionalism). The primary goal of this article is to describe the characteristics of this new constitutional phase opposing platform powers, and to outline the potential evolution of European digital constitutionalism in the global context.
Platforms are increasingly becoming a vehicle for extraterritorial regulation. Most prominently, doctrines about the binding effect of fundamental rights, that is, the state action doctrine in the US and the European horizontal effect doctrine. Such doctrines have become particularly relevant in the context of content moderation as a reaction to the substantial influence of platforms over user-generated content. Platforms may, until now, mostly rely on the US intermediary liability framework and invoke case law at their advantage when it comes to free speech issues. In Germany, the horizontal effect doctrine has a long-standing tradition and is being revived to justify the platforms’ responsibility regarding their users’ freedom of expression. This happens through policies, regardless of whether court decisions are supposed to have a binding precedent effect. When platforms implement decisions about the restrictability of free speech, they become proxies of constitutional doctrines.
We need a constitution for the Internet. This is the claim that over the past few years has frequently resonated in the words of various digital literati. In the Internet, both nation-states and big technology companies restrict individual fundamental rights in multifarious ways, consequently generating a series of intrinsically constitutional questions. Some scholars advocate the need to draft a ‘bill of rights’ for the Internet, a written document on the model of the ancient declarations of rights of the eighteenth century. Following this appeal, many civil society groups have crafted their own decalogue of digital rights, giving rise to a movement advocating a new form of digital constitutionalism. We can count almost two hundred of these declarations. This presentation will explore what their added-value is in the constitutional ecosystem, ultimately examining the ‘force’ of these declarations of rights, an old constitutional instrument entrusted with a truly contemporary mission.
This paper will build on the Brazilian Supreme Court case-law ADI 6.389, where the Court stated the need for greater dialogue between digital constitutionalism theories and judicial review. Its goal is to discuss the limits of conceptions of digital constitutionalism regarding courts adjudication of fundamental rights enforcement online. For a great part, these conceptions argue the arise of constitutionalisation processes tailored to address the challenges of inherently private and borderless environments and thus can be seen as a seek for alternative means of legitimizing alternative forms of rights protection and enforcement. In turn, Courts’ mandate to arbitrate the scope of such rights is built into democratic institutional designs, i.e., in the very core of democratic legitimacy sources. The paper will highlight the inconsistencies in promoting interdependence of these sources, and identify what useful interactions between them would look like.
Digital constitutionalism has emerged as a novel research paradigm aiming to explore how limitations in the exercise of power could be ensured in the digital environment. However, most of the time, attempts to investigate the constitutionalization of the digital sphere are confined to the legal production of soft or hard laws instruments. This paper argues that such approach does not take properly into account the coercive force of codes and digital architectures, and grounding on Teubner's societal constitutionalism, maintains that the constitutionalization of the digital space should be placed at the interplay of technological processes of digital design and social processes of norms creations. The paper will illustrate how self-restraining mechanisms could be introduced into the design of complex socio-technical systems by analyzing the recent EU Commission policies on AI, the IEEE Ethical Aligned Design guidelines, and the Association for Computing Machinery Code of conduct.