The current discourse on digital constitutionalism is heavily centred on Europe
and the United States. This article attempts to reflect from an East Asian perspective on why a broader understanding of the potential development of digital constitutionalism in other regions is crucial. It aims to enrich theoretical dimensions and explore new possibilities.
Is Digital Constitutionalism a European Concept?
No, and it’s unlikely anyone would argue that digital constitutionalism is confined to Europe. When we delve into the development history of the term “digital constitutionalism,” we see attempts by scholars such as Fitzgerald, Berman, and Suzor to reconcile constitutionalism with the challenges brought by the information society. Clearly, this is not limited to Europe. However, the European Union’s regulatory advancements have significantly propelled the paradigm shift in addressing platform power through constitutional strategies. Consequently, the rise of discussions on European digital constitutionalism is evident, substantial, and crucial. In recent years, the Europeanization of digital constitutionalism discussions has been unmistakable. Additionally, the EU’s approach, starting with the GDPR, has reinforced the focus of digital constitutionalism theories on fundamental rights.
Of course, we can also promptly affirm that digital constitutionalism is not an exclusively European concept, as the other side of the Atlantic is equally significant. Indeed, the United States, largely adhering to a liberal approach, also plays a pivotal role in the discourse. After all, this is an issue about the fantastic platforms and where to find them (but I believe this is not the only issue). This liberal method, often seen as another expression of digital constitutionalism, emphasises the freedoms protected by the First Amendment and relies on market mechanisms and major platforms to project constitutional values.
Therefore, even if we don’t exclusively call it European, it’s still a fact that both sides of the Atlantic dominate the discourse on digital constitutionalism, which is not surprising.
Possibilities Elsewhere: Take East Asia as an Example
What about other regions? If digitalisation impacts constitutionalism (which is true), then there are undoubtedly many more stories to be told from various constitutional systems. This article starts from East Asia, briefly reflecting on examples of Japan, South Korea, Taiwan, and China regarding their broad characteristics of government-private power dynamics in digital time.
Let’s start with two constitutional democracies that have achieved GDPR adequacy: Japan and South Korea. Japan typically employs a soft law approach to regulate large enterprises, using guidelines or laws without penalties. Japanese companies generally comply with these measures. In the digital technology sector, similar soft law approaches are used to regulate harmful content and AI. Whether Japan will transition to hard law in the future remains to be seen. Up to now, the primary mode involves “co-regulation,” where governments collaborate with experts and big companies, including Google and Meta, to formulate guidelines. This relationship between government and platforms appears quite different from existing theories of digital constitutionalism.
South Korea has shown a determined commitment to digital transformation through proactive amendments to laws such as the Personal Information Protection Act and continuous proposals of AI-related roadmaps and draft laws. For instance, under the Credit Information Act, South Korea mandates the right of data subjects to request explanations for automated decisions. Despite the rights approach, current AI legislative proposals in South Korea often prioritise encouraging industrial development, aiming to support technological advancement through legal means. This legislative support from the parliament to foster industries sets South Korea apart from Japan in terms of government-private relations.
Taiwan often occupies a position in discussions on digital democracy, yet its exploration of digital constitutionalism remains under-theorised and under-legalised. Specifically, Taiwan’s digital governance model highlights the significant role of citizen participation. For instance, in addressing Taiwan’s severe issue of fake news, citizen groups and civil hackers utilising AI technology have become part of the solution. I term the situation a “co-governance” structure. This emphasises an innovative governance approach that integrates citizens, governments, and platforms to enhance democratic resilience. However, the normative foundation of these developments still requires strengthening and clarification, especially concerning the roles within the constitutional framework where ambiguities persist. Large platforms, for instance, continue to operate in Taiwan without establishing legal entities, opting instead for office-based operations. Nevertheless, these dynamics underscore the value of discussing Taiwan’s digital constitutionalism.
China presents a distinctly different narrative. In Bradford‘s discussion of digital empires, China stands as a dominant force competing with the U.S. and the EU in regulatory models. While China’s Personal Information Protection Law, to some extent, employs language similar to GDPR in rights protection, recent regulations on artificial intelligence demonstrate significantly different value requirements compared to the EU system. Whether China’s situation can be classified as a form of digital constitutionalism likely requires further in-depth discussion.
In these brief glimpses, however, we not only witness some dynamics between “influence” and “autonomy” but also observe different elements closely related to the challenges and responses of constitutional systems in the digital age. Drawing from examples in Japan, South Korea, Taiwan, and China, we observe that the dynamics among “government, platforms/companies, and individuals” reveal nuanced differences within this triangular relationship. These nuances highlight numerous aspects of digital constitutionalism that are potentially ripe for exploration and development.
Toward a More Inclusive and Multidimensional Concept
The global interplay of influences and the need for localisation coexist simultaneously. It is not my intention to criticise Europe’s and the U.S.’s dominance in the discourse on digital constitutionalism. This trend is predictable given the European Union’s proactive stance and the origin of the giant platforms. The rich discussions across the Atlantic have also inspired and stimulated debates in other parts of the world. However, can we tell localised stories of digital constitutionalism in other countries and regions?
I believe we can and must. From its inception, the core concern in digital constitutionalism has been about how the prominent role of private sectors impacts existing constitutional paradigms and how these paradigms should respond (Duarte et al., 2023; Conceição, 2024). This challenge is not confined to Europe, the U.S., or China. The fact is that different constitutional systems are facing the digital challenge. While the essence of digital constitutionalism continues to be subject to lively debate, examining it from a broader regional perspective allows for the inclusion of more elements into the discussion—not only fundamental rights but also democracy and governance, as the examples from East Asia showed.
In other words, it is essential to emphasise that a comprehensive approach to digital constitutionalism globally should encompass perspectives beyond the Eurocentric lens. The predominant view of a “global approach,” exemplified by scholars like De Gregorio, highlights Europe’s influence on global discourse. While the arguments are profound, and this influence is undeniably significant, it is crucial to recognise that other regions are not merely passive recipients of European influence. Their unique, active responses to these challenges (including the influences) should contribute to the diverse understanding of digital constitutionalism worldwide.
The narrative of digital constitutionalism can be broadened to be more inclusive from the perspective of regions. I understand the related research is still insufficient due to various limitations, including language barriers, but I am optimistic that this is a future we should eagerly anticipate. Numerous untold stories exist in Latin America, Africa, Northeast and Southeast Asia and beyond. Even as I advocate for a deeper exploration into how regions beyond the Atlantic are “influenced,” it would be ideal if we could also approach this from various regional perspectives to gain deeper insights into how countries develop their narratives with the influences of what we might call the “three digital empires.” This involves understanding the realities of technological industry development, cultural and geopolitical factors, and market mechanisms. Most importantly, it’s about telling their own stories.
Kuan-Wei Chen
Kuan-Wei holds a Doctor of Law degree from LMU Munich and is a fan of Digi-Con. She also earned an LL.M. from National Taiwan University and holds a bar license in Taiwan. Additionally, she completed a research fellowship at the University of Tokyo.
