This post is a contribution to the symposium What is Digital Constitutionalism? and not an official editorial position. We nevertheless welcome the author’s contribution and encourage further posts probing the meaning of digital constitutionalism and its limits as an analytical approach.
Constitutionalism and the digital age
Digital constitutionalism has gathered increasing momentum within the academic and political debate on the future development of the Internet and cyberspace. However, the notion of “digital constitutionalism” is still in many ways fuzzy and includes a wide and fragmented array of digital policy and legislative instruments. As highlighted by Celeste (2019), “in the existing scholarship, this concept has been used with different and sometimes conflicting meanings”, so a clear-cut definition thereof is not yet available.
To fully understand what we mean with such an expression, a preliminary step back is to reconsider the notion of constitutionalism. Since its beginnings, constitutionalism as a movement and ideology identified with an aspiration to shape and constrain political power. The seventeenth century saw the increasing emergence of the role of the rule of law within the political life of a nation-state and the birth of the concept of the separation of powers through Montesquieu’s famous Ésprit des Lois. The first goal of constitutionalism is to build up a state’s constitution. In this sense, a constitution sets norms and rules governing a country’s political life and dynamics to ensure that the exercise of state power is limited through an adequate system of checks and balances. Constitutionalism is an attempt to constrain absolutism and tyranny (Peters 2006). At the same time, contemporary constitutionalism – especially following the World Wars of the twentieth century – has become increasingly concerned with fostering individuals’ fundamental rights (Tushnet 2009).
Constitutionalism, in other words, is an approach to constitutional law which fosters two fundamental purposes: the balancing of powers and the protection of fundamental human rights (De Gregorio 2021). When speaking of “digital constitutionalism”, the adjective “digital” identifies a new phase of constitutionalism. Its core ideals and goals are not changed but adapted to the new spaces and dimensions created by technology and the Internet. This new strand thus aims, on the one hand, at governing the new relational dynamics which have developed in cyberspace; on the other hand, at guaranteeing that individuals’ traditional, as well as new, human rights are fully protected vis-à-vis the increasingly digital world we live in (Floridi 2014).
As for the first aspect, the main revolution brought about by the digital environment is the fact that new actors have rapidly entered the scene and taken power over cyberspace. Over-the-top (“OTT”) digital businesses and media have become the new governors of the Internet (Klonick 2018) and have in many ways gathered forms of power that were in the past a prerogative of nation-states. For instance, platforms are nowadays a necessary game-player in the governance of human rights and liberties such as freedom of expression and freedom of association (Balkin 2018). In the past, it was the nation-state that imposed restrictions and rules upon the words spoken by individuals. Today, speech uttered through digital infrastructures has to comply with terms and conditions imposed privately by digital firms and social media. Terms and conditions more than often do not correspond to the rules set by the state. They can be more or less strict (Wilson and Land 2021), so much that the relationship between the two forms of governance can be extraordinarily sensitive and complex. Cyberspace has thus revolutionised the power dynamics, modifying the role played by the various societal actors, and has even transformed and shaken the traditional scope and definition of concepts such as jurisdiction and sovereignty (Pohle and Thiel 2020). The second aspect of constitutionalism, i.e. the custody of individuals’ prerogatives and fundamental rights, has also undergone a paradigmatic shift. On the one hand, the nature and substance of many traditional human rights have changed, as already emerges from the account made above about freedom of expression. The principles of human dignity and non-discrimination also face new and unprecedented challenges, such as the concrete risk of being affected by biased systems of automated decision-making (Wachter et al. 2021). At the same time, new substantive, as well as procedural, types of fundamental rights have emerged or have been proposed, which are strictly interconnected with the characteristics and features of a digital environment. These include, among the others, the so-called right to be forgotten, the right to explanation vis-à-vis an automated decision, and the right to access the Internet (Risse 2021).
The quest for a new constitutional balance
Digital constitutionalism is, therefore, a response to the new challenges (and opportunities) brought about by this new landscape and ecosystem, reacting “against the power emerging from digital technologies implemented by public and private actors” (De Gregorio 2021). Because digital technologies have significantly altered the constitutional equilibrium at a national, supranational and international level, digital constitutionalism furthers a range of counteractions to avoid the allocation of excessive power in the hands of a few (unaccountable) actors.
These countermeasures differ significantly from each other, both from a substantive and a formal perspective. Taking, on the one hand, a substantive point of view, Celeste identifies three categories: (a) norms aiming to recognise the increased possibility of exercising an existing fundamental right; (b) norms aiming to limit the increase of fundamental rights violations; and (c) norms aiming to restore a balance among existing powers.
From a formal perspective, on the other hand, the instances of digital constitutionalism have been sought through a mosaic of different policy and legal tools, especially within the European landscape. First of all, the Courts have played a fundamental role in developing and shaping fundamental rights in the digital space, as epitomised by the well-renowned decision of Google Spain (Pollicino 2021). Second, constitutional drives pushed the drafting and enactment of both soft-law and hard-law legal instruments. Indeed, after the first phase of digital liberalism (De Gregorio 2021), the European Union, from the second half of the 2010s, has sought to make Internet intermediaries and platforms more and more responsible for both the content they host and of the measures they adopt to protect the fundamental rights and liberties of the recipients of their services. This goal was initially pursued through the implementation of codes of conduct and practices, such as the ones laid down in 2016 and 2019 as instruments to fight the dissemination of illegal hate speech and disinformation. More recently, the Commission has taken a further stance and has proposed the introduction of stricter hard-law tools: it is in this direction that instruments such as the Digital Services Act (“DSA”) and the Artificial Intelligence Act (“AI Act”) move. Seemingly, European law is progressively shifting from a self-regulatory to a top-down regulatory approach. In addition to this, digital constitutionalism often also involves the intervention of non-governmental actors. Indeed, it is also driven and fostered, in many ways, by the work of civil society (Teubner 2004). In this sense, an important role in the development of digital constitutionalism has been played by the many attempts and proposals made since the 1990s to draft an “Internet Bill of Rights” (Redeker et al., 2018).
The many formal sources and the variety of substantive contents characterising the digital strand of contemporary constitutionalism can lead one to perceive it as a magmatic and chaotic movement. The expression “digital constitutionalism” appears as a melting pot to which scholars ascribe an array of Internet policy solutions confusedly. However, at a closer look, it may be possible to identify a common path and a common direction. The contemporary world is rapidly changing and moving towards what used to be the “virtual”, as opposed to what used to be perceived as the “real” world. The recent choice of Facebook to change its name into “Meta”, thus making an explicit reference to the concept of “metaverse”, is a symptom of such a societal shift (Hall and Li 2021)
Against this backdrop, digital constitutionalism is the driving force behind the process of constitutionalising cyberspace and the digital environment. Such a process, after timid infancy, is rapidly accelerating and progressively moving towards maturity, although still much has to be done, both at a doctrinal and at a political level, before it can reach and obtain its final goals. Nonetheless, the many different forces which are guiding the design of a new system are ultimately driven by the two core purposes of traditional constitutionalism: the balancing of powers and the protection of individuals. It is in these two objectives that such an ambitious project may find, ultimately, its unitary dimension.
Pietro Dunn, ‘Digital Constitutionalism: A Chaotic Melting Pot or A Unitary Framework?’ (The Digital Constitutionalist, 22 February 2022) <https://digi-con.org/what-is-the-digital-state-an-initial-approximation/>