God machine, Malfunctioned as it grew.
Greta Van Fleet – Age of Machine
Democracy is one, or perhaps, the foundational value of the European constitutional order. Democracy, however, has always been an ambitious endeavour. Its main promise to guarantee individual rights and freedoms, at the same time has often turned out to be its Achilles’ heel. And indeed, history reminds us, that democracy must not be taken for granted. According to a haunting quote often wrongly attributed to Joseph Goebbels it ‘(…) will always remain one of the best jokes of democracy that it gave its deadly enemies the means by which it was destroyed’. Against this backdrop, more than seven decades ago European Constitutionalism put forth a concept aimed at preventing democracy from such abuse – militant democracy.
Today, democracy has come again under fire. The rise of new private powers in the digital sphere as well as the disruptive effects of digital technologies are posing unprecedented challenges to democracy. Some scholars have thus identified a need for European Constitutionalism to enter a new phase called ‘Digital Constitutionalism’, aimed at defending constitutional values and principles in the digital age by rethinking established concepts of constitutional law.
It is hence the aim of this blog post to contribute to Digital Constitutionalism’s agenda by analysing, from the perspective of EU constitutional law, how the activities of digital platforms are challenging EU militant democracy and what could be done about it.
The Idea: ‘fire is fought with fire’
The origins of militant democracy can be traced back to early days of constitutionalism. The famous slogan ‘il n’y a pas de liberté pour les ennemies de la liberté’ from the era of the French Revolution bears testimony to this history. The modern conception of militant democracy, however, was most prominently shaped by German political scientist Karl Loewenstein in his 1937 essay ‘Militant Democracy and Fundamental Rights’. Amid the advent of fascism in Europe in the 1920’s and 30’s deluging big parts of the continent, Loewenstein argued that democracy must no longer remain in suicidal lethargy but rather become militant to address the fascist menace to its very foundations. It was however only after World War II that his ideas were translated into constitutional law. Most notably the then new German constitution (Basic Law), in reaction to the experience with Nazism and the demise of the first German democracy, incorporated several provisions reflecting Loewenstein’s proposal.
As a principle of constitutional law militant democracy, however, always lived a life in the shadows. This holds true not only for national constitutional law, but especially regarding the question to which extent the EU treaties can be considered to constitute a militant democracy. With the consolidation of European integration, it became more and more apparent that militant democracy can no longer merely be seen as an issue confined to national constitutional law. Rather, the ever-ongoing process of politicisation and democratisation of the Union required the EU constitutional order to develop equivalent instruments to those at national level. And in fact, since the EU with the Treaty of Lisbon has seen the introduction of values to its legal order (cf. Art. 2 TEU), the effective protection of those values became one of the most delicate issues of EU constitutional law. While this debate in the last years was dominated by the departing of some Member States from the common understanding of the Rule of Law, recent events in the U.S., the UK and some Member States have caused the discussion to focus as well on the protection of another of the EU’s core values – democracy.
New challenges
Today, 85 years after Loewenstein’s influential account, European democracy is again at stake. In the meantime, however, significant parts of democratic process have shifted first, from national to EU level and second, from the world of atoms to the world of bits, resulting in new threats which Loewenstein could not predict when writing his essay in 1937.
In the ‘classic’ setting, the main threat to democracy originated from extremist movements, driven by an ideology incompatible with core democratic principles and with the goal of overthrowing the current democratic system to eventually seize power. Given that said movements were usually organized in the form of political parties and relied on political agitation or the use of force to reach their goals, party bans or the suspension of fundamental rights became the established response of militant democracies to these threats.
Now, while these traditional threats to democracy are still of relevance today, the advent of digital platforms resulted in the emergence of new perils laying bare a ‘blind spot’ of conventional conceptions of militant democracy. In accordance with Aziz Huq it is possible to identify at least two characteristics of digital platforms with adverse effects on democracy: (1.) the concentration of power in the hands of platforms, allowing them a direct influence on public discourse and (2.) the quality of information circulating on those platforms, i.e. mis- and disinformation. I would like to add two points to this list, namely (3.) the transnational nature of these platforms, challenging the EU constitutional order as a whole and – first and foremost – (4.) the use of certain technological features, embedded into the platforms’ architecture. While the latter were initially designed to serve the advertising business model of platforms, they are suspected to at the same time facilitate and amplify the dissemination of harmful content, thus contributing to the distortion of public discourse, essential to a well-functioning democracy. Despite the platforms not creating this content themselves and not acting with the intention of harming democracy in the first place, their role is however not limited to that of a passive auxiliary. On the contrary, they play an active role in the erosion of European democracy by deliberately conducting a hazardous business model at the expense of democracy. Hence, considering that the activities of digital platforms are yielding perils which resemble the traditional threats and actors in their potential to undermine the democratic process, it appears justified to analyse them through the lens of militant democracy.
Being aware of these new challenges, the EU in general seems to embrace this approach. The Commission for instance in its 2020 European democracy action plan has highlighted, that ‘Democracy must not be taken for granted – it needs to be actively (…) defended’. Consequently, in the last three years the EU has adopted several measures aimed at strengthening the democratic resilience in the Union.
However, while these regulatory efforts are certainly serving said goal, thus contributing to the constitutionalisation of digital platforms in the EU, the question arises why the EU is addressing the issue solely on the level of secondary law as opposed to primary law. Moreover, considering that the current debate about the rule of law mainly concerns questions of constitutional law, the situation becomes even more odd. The reason for this, I argue, lies in the fact that from the perspective of EU constitutional law the new digital threats entail conceptual challenges requiring further reflection for they are revealing a ‘blind spot’ of the traditional concept of militant democracy in the EU.
Identifying the Blind Spot
According to a research study by Martin Klamt[1], today militant democracy is a well-established yet controversial principle of both national and EU constitutional law: On the one hand, most of the Member States’ constitutions contain elements of militant democracy, especially provisions allowing for the banning of political parties or the suspension of rights. On the other hand, although at first glance remaining silent on the issue, the EU treaties do in fact also provide for a specific set of provisions reflecting the spirit of militant democracy: Namely, Art. 2 TEU in conjunction with the infamous procedure according to Art. 7 TEU and – to a certain degree – Art. 54 CFR concerning the abuse of rights.
Yet, none of these provisions are applicable to the ‘new’ setting outlined above. Art. 7 TEU, which is certainly the most rigid tool for the protection of the EU’s values, requires ‘(…) a serious and persistent breach by a Member State of the values referred to in Art. 2 [TEU]’, which is obviously not the case with private digital platforms. Art. 54 CFR, on the contrary, though in principle applicable to private parties, refers to an ‘(…) act aimed at the destruction of any of the rights and freedoms recognised in this Charter’. However, neither does democracy constitute such a right or freedom, nor do the digital platforms act with the intention of destroying the latter. Moreover, the digital platforms are also escaping the Member States’ toolbox of militant democracy for they are non-political actors and are thus not organised in the form of a political party.
The ‘blind spot’ of militant democracy in the EU regarding the activities of digital platforms is therefore due to the Treaties only providing for provisions concerning the ‘vertical’ situation of a Member State violating the values mentioned in Art. 2 TEU. The ‘horizontal’ situation, on the contrary, where democracy is menaced by the activities of a non-state actor with no political agenda is not covered. Hence, considering the new digital perils on the one hand and the corresponding ‘blind spot’ of EU constitutional law on the other, the Treaties are rather constituting a tame than a militant democracy.
This is also evident in the way the EU is currently trying to address the new challenges to democracy. While the platforms do not cease to invoke their right to conduct a business (Art. 16 CFR) thus shielding themselves from further accountability, the EU is limited to regulation at the level of secondary law based on Art. 114 TFEU obfuscating the constitutional nature and importance of the issue.
Adjusting the Mirrors?
In light of the blind spot identified above, the ultimate question from the perspective of EU constitutional law is thus how to ‘adjust the mirrors’. The goal must be to close the existing gap in primary law in order to create a robust constitutional framework for further regulation to be even more effective and equip European democracy with the necessary instruments of defence.
While treaty change until very recently has been out of the question, with the Conference on the Future of Europe and the commitment of Institutions and Member States to make the EU fit for the future, chances seem now better than ever to amend the primary law. Against this backdrop and given the importance of the issue at stake, I would therefore suggest the following amendments:
Firstly, to introduce a horizontal dimension to EU militant democracy, the definition of an abuse of rights in Art. 54 CFR could be extended to every invocation of rights and freedoms of the Charter ‘with the aim of combatting or the effect of undermining the free democratic order of the Union’. In this context Art. 18 of the German Basic Law could serve as a useful blueprint in two respects: First, by linking the instrument of abuse of rights to the protection of the democratic fundamentals of the State, or in this case, the Union. And second, by introducing a minimum standard of protection, i.e. the free democratic order, covering only the indispensable core elements of democracy. Especially the latter could prove very helpful for delimiting the areas of competence of the EU and the Member States regarding the protection of democracy by defining a threshold for common action at EU level.
Secondly, Art. 2 TEU could be complemented by a third sentence emphasising the Union’s commitment to actively defend its foundational values, especially said free democratic order. Such an amendment of Art. 2 TEU would bear the advantage of not only translating the basic idea of militant democracy into EU primary law, but also of creating a legal basis for the Union to adopt measures in defence of democracy. Instead of being limited to tackle the new threats through the lens of the Single Market, the current efforts of the Union to regulate digital platforms and their effect on democracy could be thus embedded in a broader constitutional framework of militant democracy.
In any case, although Europe has changed a lot since Loewenstein has written his cautioning article, his work continues to be relevant. It is now up to Digital Constitutionalism to continue this legacy of old European Constitutionalism and develop a new understanding of militant democracy fit for the digital age.
[1] Klamt, Martin, Die Europäische Union als Streitbare Demokratie, München 2011.
Alexander Kloth
Alexander Kloth, LL.M. (College of Europe) is a doctoral researcher and law clerk (Rechtsreferendar) at Kammergericht Berlin. His PhD research is on fundamental rights theory in the age of digital surveillance.
