I. Introduction
The emergence and consolidation of digital technologies have triggered opportunities to exercise fundamental rights and freedoms since the end of the last century.Footnote 1 The evolution of the services offered by social media or search engines can be considered part of the technological optimism charactering the advent of the internet.Footnote 2 At first glance, the benefits of this revolution of freedom have provided reasons to overcome the fear of public surveillance and censorship online. Nonetheless, the digital environment is not only subject to public control;Footnote 3 it is also shaped by private ordering driven by the logics of information capitalism,Footnote 4 or surveillance capitalism.Footnote 5 Google, Facebook, Amazon and Apple are paradigmatic examples of new digital forces that compete with public actors in the exercise of powers online,Footnote 6 and the COVID-19 pandemic has underlined the role of online platforms as social infrastructures.Footnote 7 Amazon has allowed products to be delivered during the lockdown phase and Facebook has allowed users to maintain social relationships. In the meantime, Google and Apple have offered their technology to develop contact tracing apps. These actors have promptly provided products and services that other businesses, or even the state, failed to deliver at a time of crisis. The primary role of online platforms has encouraged an assessment of these actors not only as mere business entities, but as critical infrastructures,Footnote 8 public utilitiesFootnote 9 or essential facilities.Footnote 10
Online platforms are critical pieces of the algorithmic society as the new societal background where large, multinational social platforms ‘sit between traditional nation states and ordinary individuals and the use of algorithms and artificial intelligence agents to govern populations’.Footnote 11 The Cambridge Analytica scandal highlighted the role of social media as instruments for interfering in public discourse during elections.Footnote 12 Likewise, bans on media outlets implemented by Facebook as a reaction to the Australian Competition and Consumer Commission’s News Media and Digital Platforms Mandatory Bargaining Code as well as the de-platforming of Donald Trump are just two examples of the role of online platforms in shaping public policies and decision-making. At first glance, these cases are apparently disconnected; however, a closer observation shows that the consolidation of information capitalism is not only a matter of freedom, but it also leads to the concentration of (private) powers raising constitutional questions for the principle of the rule of law and democracy. If Google and Facebook can set standards to define the protection of rights and freedoms on a global scale based on business purposes, it is not surprising that they can exercise a form of power, or ‘functional sovereignty’, which can compete with, if not overcome, that of public authorities.Footnote 13 The constitutionalization of global private spheres beyond territorial boundaries constitutes one of the primary challenges for constitutional democracies,Footnote 14 and this trend is particularly relevant in the digital age.
In the last decades, the constitutional approaches to the rise of platform powers have increasingly become polarized across the Atlantic to address these transnational challenges. From the first period of regulatory convergence based on neoliberal positions at the end of the last century, the United States and the European Union have taken different paths. On the eastern side of the Atlantic, the European Union has slowly abandoned its liberal imprinting to digital technologies, in which it has primarily been influenced by the US legal framework.Footnote 15 Whereas at the end of the last century, the European Union was focused mainly on promoting the growth of the internal market, this liberal approach has been enriched (or even overturned) by a constitutional democratic strategy. The adoption of the General Data Protection Regulation (GDPR) has been a milestone in constitutionalizing European data protection following the Lisbon Treaty.Footnote 16 The proposals for the Digital Services Act or the Digital Markets Act are other examples showing the paradigm shift in the European Union towards more accountability of online platforms to protect European democratic values.Footnote 17
While the European Union is at the forefront of a new constitutional phase addressing the challenges raised by the exercise of private powers in the digital age, the United States has not demonstrated the same concern. It has followed an opposite constitutional path which trusts online platforms as spaces for democracy. For instance, the Communication Decency Act (CDA) still immunizes online intermediaries,Footnote 18 including modern online platforms, from liability when moderating users’ content. In the field of data, apart from some national attempts,Footnote 19 there is no harmonized approach to privacy and data protection at the federal level. Both in terms of content and data, the US policy is anchored to a digital liberal approach that considers the First Amendment as the primary beacon of the algorithmic society.
Within this framework, this article examines the reasons for, and the consequences of, the shift from converging to diverging constitutional approaches across the Atlantic to address platform governance. By adopting a comparative perspective under the lens of digital constitutionalism,Footnote 20 it explains that the diverging strategies of the United States and the European Union to limit private powers in the digital age are the result of different constitutional premises across the Atlantic. This article thus provides an example of how constitutional democracies do not always adopt the same constitutional strategies but react differently to the same challenges. Therefore, the case of platform governance provides an opportunity to study constitutional nuances in the digital age. The debate has focused mostly on platform governance and digital policies from internal or regional perspectives, and not enough attention has been given to a comparative analysis between the EU and US approaches.Footnote 21
This article provides a constitutional bridge by examining the primary reasons for the European emancipation from the US reluctance to address the consolidation of digital capitalism and the powers of online platforms. From a methodological perspective, it investigates the different approaches of two constitutional democracies which, over the last 20 years, have witnessed a mutual migration of constitutional ideas in terms of digital policies.Footnote 22 This comparative study underlines how the EU and US answers to platform powers are respective examples of democratic and liberal approaches to the algorithmic society.
To achieve this purpose, the first part of this article introduces the rise of digital constitutionalism, and focuses on the trans-Atlantic dimension. The second part frames digital constitutionalism within the European and US approaches by examining the reactions against the exercise of private powers in the digital environment. The third part compares the two constitutional approaches and underlines the implications of different expressions of digital constitutionalism on a global scale.
II. The rise of digital constitutionalism
The constitutional challenges raised by online platforms are primarily linked to the process of globalization. The cross-border nature of the internet has challenged traditional categories of modern constitutionalism.Footnote 23 This new protocol of communication has not only questioned consolidated notions such as sovereignty and power,Footnote 24 but also enriched the possibility of exercising fundamental rights and freedoms.Footnote 25 Nonetheless, in addition to other expressions of globalization, the digital environment has put democratic constitutional states under pressure.Footnote 26 Precisely, in the case of the internet, constitutional democracies found themselves at a crossroads at the end of the last century, trusting the potential of the internet as a democratic force, and thus ensuring a liberal environment, or regulating the online dimension to limit the consolidation and exercise of powers by undermining the same rights and freedoms that the internet promises to enrich on a global scale.
Before this choice, constitutional democracies considered the internet to be the engine of freedom guiding the information society. Both sides of the Atlantic decided to follow the liberal branch of this crossroads, thus limiting their regulatory intervention while also exempting online intermediaries from responsibility. This phase of digital liberalism characterizing the policies of constitutional democracies at the end of the last century does not just reflect the neoliberal position taken by constitutional democracies but also falls within the extensive technological optimism welcoming the advent of the internet.Footnote 27 This narrative also influenced the reasons to adopt a free-market approach concerning the regulation of the digital environment.Footnote 28 A paternalistic approach would have hindered the development of new digital services and damaged the growth of the internal market exactly when new technologies were poised to revolutionize the entire society. Digital technologies were far from demonstrating their potential, and the extent to which the digital revolution would affect daily lives by providing new opportunities while introducing complexity in the achievement of the common market could not be predicted. Digital technologies were considered an opportunity to grow and prosper rather than a potential threat to individual rights and freedoms. At that time, there were no reasons to fear the rise of new private powers challenging the protection of fundamental rights and democratic values while competing with states’ powers.
Therefore, constitutional democracies have facilitated this process by exempting online intermediaries from secondary liability for unlawful third-party content while providing rules to foster the free circulation of data. Besides, the use of a global communication technology for delivering services without any physical burden, and regardless of their location, have led to new opportunities for the public and private sectors.Footnote 29 In this liberal framework, new businesses have found a welcoming environment to consolidate their activities, especially through the possibility of collecting vast amounts of information through digital channels without encountering constitutional limits.Footnote 30 Both public and private actors have started to increasingly collect, organize and process information to pursue public tasks and to earn profits.Footnote 31
The accumulation of data and the consequent extraction of value have enhanced not only public powers, but also first the economic and then the political power of the private sector in the digital age. Even if not exclusively, platform business models are based or highly rely on processing data for profiling purposes to make profits from advertising revenues, targeted services or the analysis of data. By relying on their freedom of contract to determine the boilerplate conditions for their terms of service and community guidelines, platforms have unilaterally established standards of protection online, exercising de facto tasks usually vested in public authorities.Footnote 32 Formally, these private agreements bind users to the platforms. However, these contracts are substantially instruments of private ordering that shape the scope of fundamental rights and freedoms of billions of people by adopting a rigid top-down approach. For example, the process of content moderation underlines the discretion that social media exercise in determining the standard of speech applicable to billions of users on a global scale while monetizing from advertising revenues.Footnote 33 Likewise, while platforms such as Airbnb or Uber provide new possibilities to work, they also shape labour rights and, more broadly, contribute to changing the face of (smart) cities.Footnote 34
As Pasquale observes, digital firms are no longer market participants, since they ‘aspire to displace more government roles over time, replacing the logic of territorial sovereignty with functional sovereignty’.Footnote 35 These actors have already been named ‘gatekeepers’, which underlines their high degree of control in online spaces.Footnote 36 The launch of Facebook’s Oversight Board is a paradigmatic example of the consolidation (and institutionalization) of this process.Footnote 37 While public enforcement has long been the default option, based on the role of public authorities as the monopoly holder in the context of fundamental rights adjudication, private enforcement has emerged as a trend even in the digital age.Footnote 38 Indeed, such privatization of the protection of rights and liberties is just one of the countless processes underlining a trend of constitutional democracies delegating public enforcement to private entities.Footnote 39
Therefore, the rise and consolidation of platform capitalism leads to questions about the role of constitutional law in the algorithmic society. Modern constitutionalism has pursued the goal of protecting fundamental rights on the one hand, and limiting the emergence of powers outside any control on the other.Footnote 40 Constitutions are a critical part of the social contract, limiting governmental powers and protecting individual freedoms from interference by public authorities.Footnote 41 Nonetheless, this mission has traditionally focused on limiting the authority of public actors. Instead, in the algorithmic society, the primary challenge for constitutional democracies no longer comes exclusively from public authorities but stems primarily from the governance of spaces by formally private actors, which exercise functions traditionally vested in public authorities.
This framework underlines the role of digital constitutionalism as a lens to articulate the limits to the exercise of power in a networked society.Footnote 42 As Suzor observes, ‘digital constitutionalism requires us to develop new ways of limiting abuses of power in a complex system that includes many different governments, businesses, and civil society organizations’.Footnote 43 However, this outlook does not imply revolutionizing the grounding roots of modern constitutionalism but reframes the role of constitutionalism in the algorithmic society.
The expression ‘digital constitutionalism’ refers to two dimensions. The first concerns the focus on digital technologies. Therefore, the frame is focused on the analysis of a specific timeframe in the aftermath of the advent of the internet. The second dimension refers to constitutional theory and law, conceiving powers as the exclusive expression of public authority and rights and freedoms as safeguards against the discretionary exercise of these powers. The mix between the two expressions provides an understanding of how digital technologies and constitutional law affect each other. In this sense, by defining a new theoretical and practical field based on a dynamic dialectic between constitutionalism and technology, digital constitutionalism demonstrates the reactions of constitutionalism to the transformation of power exercised by public and private actors in the digital age. This descriptive goal also leads to a normative approach based on a reframing of the protection of fundamental rights and the exercise of powers in the context of the algorithmic society.
Nonetheless, the normative focus of digital constitutionalism does not lead to a unique approach across constitutional democracies. Digital constitutionalism does not provide a single way to solve the problems of the algorithmic society. On the contrary, rather than just looking at global constitutionalism,Footnote 44 digital constitutionalism reflects the different nuances characterizing constitutional systems. The way in which constitutional law reacts to the challenges of the algorithmic society is still driven by regional and local constitutional traditions and cultures. This relationship is primarily because, even in a phase of internationalization of constitutional law,Footnote 45 constitutions represent the identity and values of a certain community that is connected to traditions and territory. Although the protection of constitutional rights and the rule of law are missions shared by constitutional democracies, nonetheless, the protection of these values depends on the political, institutional and social dynamics of constitutional systems. Therefore, digital constitutionalism should not be considered a monolith but the expression of different constitutional approaches to digital technologies from an internal and external perspective.
In the following sections, the analysis of the European and US approach to digital technologies and platform governance demonstrates how constitutional democracies provide different answers to address the same problem. This analysis underlines how the characteristics of digital constitutionalism across the Atlantic have led the two systems to follow almost opposite directions to solve the common challenges raised by the consolidation of platform capitalism.
III. The path towards European digital constitutionalism
Since the second half of the twentieth century, the goal of the European Union has been oriented towards building a common market.Footnote 46 Until the adoption of the Charter in 2000 and the recognition of its binding effects following the adoption of the Lisbon Treaty, the Union approach was firmly based on this liberal imprinting based on economic pillars, namely the fundamental freedoms.Footnote 47 This liberal goal has also influenced the regulation of the digital environment. Both the Directive 95/46/EC, known as the Data Protection Directive, and Directive 2000/31/EC, or the e-Commerce Directive, are examples of the European liberal bias. These instruments were oriented to ensure the smooth development of the internal market by immunizing online intermediaries and promoting the free flow of personal data in the internal market.Footnote 48
The liberal imprinting of the Union was challenged due to the rampant changes of the digital environment at the beginning of this century. At the very least, two events led to the end of the first (liberal) phase and encouraged the European Court of Justice (ECJ) to play an active role in paving the way towards a new European constitutional strategy. The first event triggering this phase of judicial activism concerned the rise and consolidation of new private actors in the digital environment, and the second involved the recognition of the European Charter of Fundamental Rights (Charter) as a bill of rights of the Union.Footnote 49
The first turning point concerns the role of online intermediaries. At the end of the twentieth century, these entities merely provided access to products and services originated by third parties on the internet or provided internet-based services, such as hosting, to third parties. In other words, online intermediaries were mere service providers or data processors without being involved in the organization or moderation of content or in the determination of data processing purposes. The neoliberal approaches adopted by constitutional democracies have led some hosting providers, such as social media platforms and search engines, to play a more active role since the early 2000s. Unlike traditional access or hosting providers, the primary activities of these actors no longer consist of providing online spaces to host content. Online platforms also set standards and rules to organize their digital spaces, which are driven by the profits coming from the analysis of information and data.
The second driver triggering a new phase characterizing European digital constitutionalism involves the recognition of the binding nature of the Charter and its inclusion in EU primary law.Footnote 50 Even if the role of the Charter is still discussed, particularly in light of member states’ national identities,Footnote 51 this step has contributed to codifying the constitutional dimension of the European (digital) environment. Prior to the Charter, the protection of freedom of expression, privacy and personal data in the European context was based not only on the domestic level but also on the European Convention on Human Rights (Convention).Footnote 52 The Strasbourg court has played a crucial role in extending the protection of fundamental rights online as well as underlining the constitutional challenges coming from digital technologies.Footnote 53 For instance, the court has underlined the risks for freedom of expression online.Footnote 54 Likewise, in the field of data, it has underlined the relevance of protecting personal data evolving from the negative framework of privacy.Footnote 55 The Lisbon Treaty has constituted a crucial further step in this process of constitutionalization, allowing the right to freedom of expression,Footnote 56 private and family life,Footnote 57 and the protection of personal data,Footnote 58 as already enshrined in the Charter, to become binding vis-à-vis member states and European institutions,Footnote 59 which can interfere with these rights only according to the Charter.Footnote 60 Moreover, like the Convention,Footnote 61 the Charter adds another important piece of the European constitutional puzzle by prohibiting the ‘destruction of any of the rights and freedoms recognized in this Charter or at their limitation to a greater extent than is provided for herein’.Footnote 62
Within this new constitutional framework, the ECJ started to apply the Charter as a parameter to assess the validity of and to interpret European legal instruments, thus moving from a formal dimension to a substantial application of fundamental rights and freedoms (i.e. constitutional law in action).Footnote 63 Given the lack of any legislative review of either the e-Commerce Directive or the Data Protection Directive, judicial activism has played a critical role in highlighting the challenges for fundamental rights online, thus guiding the transition from a mere economic perspective to a new constitutional phase.
In Scarlet and Netlog,Footnote 64 the ECJ has adopted a constitutional interpretative angle in two cases involving online intermediaries and, in particular, the extent of the ban on general monitoring. The ECJ dealt with the complex topic of striking a balance between the fundamental rights of the users, especially the right to data protection and freedom of expression, and the interests of the platforms not to be overwhelmed by expensive monitoring systems. According to the ECJ, an injunction to install a general filtering system would not have respected the freedom of online intermediaries to conduct business.Footnote 65 Moreover, the contested measures could affect users’ fundamental rights, namely their right to the protection of their personal data and their freedom to receive or impart information.Footnote 66 As a result, the court held that Belgian content filtering requirements ‘for all electronic communications … which applies indiscriminately to all its customers; as a preventive measure; exclusively at its expense; and for an unlimited period’ violate the ban on general monitoring.
Following that decision, the ECJ has relied on the Charter to assess the framework of the e-Commerce Directive. For instance, in Telekabel and McFadden,Footnote 67 the ECJ addressed two similar cases involving injunction orders on online intermediaries which leave the provider free to choose the measures to tackle copyright infringements while maintaining the exemption of liability showing its duty of care in respect of EU fundamental rights. The ECJ upheld the interpretation of the referring national court on the same (constitutional) basis as argued in Scarlet and Netlog by concluding that the fundamental rights recognized by EU law have to be interpreted as not precluding a court injunction such as that of the case in question.
In the field of data, the same shift of paradigm has occurred in Digital Rights Ireland,Footnote 68 where the ECJ invalidated Directive 2006/24/EC due to its disproportionate effects over fundamental rights.Footnote 69 By assessing the interferences, and potential justifications, with the rights of privacy and data protection of EU citizens established by the Charter, the ECJ has shown itself to be aware of the risks of technologies for the protection of the fundamental rights of EU citizens.
In Google Spain,Footnote 70 the way the ECJ recognized that a search engine like Google falls under the category of ‘data controller’ shows the predominant role of Articles 7 and 8.Footnote 71 In other words, considering Google as a mere data processor would not have ensured effective protection of the rights of the data subjects. The same consideration also applies to the definition of establishment as defined by the Data Protection Directive. The ECJ has broadly interpreted the meaning of ‘in the context of establishment’ to avoid fundamental rights to be subject to a disproportionate effect due to a formal interpretation of establishment.Footnote 72 Moreover, the ECJ has entrusted search engines to delist online content from their results even without requiring the removal of the content at stake.Footnote 73 Such a constitutional-oriented interpretation is considered the expression of a horizontal enforcement of the fundamental rights enshrined in Articles 7 and 8 of the Charter. Despite this high level of protection of fundamental rights and the limitations on private actors’ activities, it is worth observing how the ECJ has delegated to search engines the task of balancing fundamental rights when assessing users’ requests to delist personal data from search results.Footnote 74
The same constitutional approach is engaged in the Schrems saga.Footnote 75 In Schrems I, the ECJ invalidated Decision 2000/520, which was the legal basis allowing the transfer of data from the European Union to the United States (i.e. the safe harbour).Footnote 76 Even in this case, the ECJ provided an extensive interpretation of the fundamental right to data protection when reviewing the regime of data transfer established by the Data Protection Directive,Footnote 77 to ensure ‘an adequate level of protection’ in the light of ‘the protection of the private lives and basic freedoms and rights of individuals’.Footnote 78 The ECJ has manipulated the notion of ‘adequacy’, which, as a result of this new constitutional frame, has moved to a standard of ‘equivalence’ between the protection afforded to personal data across the Atlantic.Footnote 79 These cases underline the role of the Charter in empowering the ECJ and extending (or adapting) the scope of the Data Protection Directive vis-à-vis the new digital threats coming from the massive processing of personal data both inside and outside European boundaries. This constitutional interpretation has led the ECJ to extend constitutional safeguards to the digital environment, which underlines how the European economic frame could not be considered sufficient to address new digital challenges.
The lesson learnt from judicial activism did not go unnoticed. The European Commission demonstrated its awareness of the new digital framework in the years following the adoption of the Treaty of Lisbon. In the framework of the Digital Single Market strategy,Footnote 80 the Commission underlined the need to ensure that online intermediaries (rectius platforms) ‘protect core values’ and increase ‘transparency and fairness for maintaining user trust and safeguarding innovation’.Footnote 81 This approach is because of the role of online platforms in giving access to information and contents to society and, as a result, their impact on users’ fundamental rights. As the Commission stressed, this role implies ‘wider responsibility’.Footnote 82 The ECJ’s judicial activism has played a crucial role in underlining the challenges of the algorithmic society, which has triggered a new European constitutional phase towards the injection of democratic values in the digital environment.
This political approach resulted in a new wave of soft and hard law instruments whose objectives have been, inter alia, to regulate online platforms’ activities in the field of content and data. To increase the accountability of online platforms, the Commission introduced new obligations to online intermediaries. This approach is evident in the field of content where new safeguards have been introduced by the Directive on Copyright in the Digital Single Market,Footnote 83 the amendments to the Audiovisual Media Service Directive,Footnote 84 and the Regulation on Terrorist Content.Footnote 85 In the field of data, the GDPR has introduced other safeguards and increased accountability to protect the fundamental rights of data subjects.Footnote 86 Furthermore, the Commission introduced soft-law regulatory solutions through which the Commission is trying to cooperate with platforms in the fight against certain forms of expression (e.g. hate speech).Footnote 87 These measures have anticipated the adoption of the new Digital Services Act and Digital Markets Act, the aim of which is to provide a new legal framework for competition and digital services while also mitigating the constitutional challenges raised by online platforms and protect European democratic values.Footnote 88 In particular, the Digital Services Act will provide an horizontal systems of substantive and procedural safeguards limiting platforms’ power in content moderation.
Within this framework, European digital constitutionalism should not be considered as a mere reaction, but rather as a long-term strategy to prevent constitutional values from being neglected by unaccountable powers. In other words, it is also a proactive strategy to protect democratic values in the algorithmic society. This European sensitivity also results from a constitutional history recognizing the horizontal and protective dimensions of rights.Footnote 89 This new constitutionally oriented phase triggered by the reaction of the European Union to the emergence of private powers underlines that there is no space in Europe for a neoliberal approach which would lead to destroying democratic values. As observed, ‘there is no foolproof constitutional design that can immunize liberal democracy from the pressures of backsliding. At best, constitutional design features serve as speed bumps to slow the agglomeration and abuse of political power; they cannot save us from our worst selves completely.’Footnote 90 This risk does not just concern political or external forces that aim to overthrow democratic safeguards, but also the interferences of unaccountable private powers.
IV. The path of US digital constitutionalism
On the other side of the Atlantic, a neoliberal understanding has driven the US approach to the digital environment. In the field of content, the first regulation addressing online intermediaries introduced statutory immunities concerning tort liability. The CDA does not impose duties or procedural safeguards, and platforms are exempted from liability for hosting third-party content. However, the CDA is not the only instrument expressing the US liberal approach at the end of the twentieth century. The Digital Millennium Copyright Act (DMCA) is considered another legal pillar exempting online platforms from tort liability.Footnote 91 Despite the differences between the two instruments,Footnote 92 these statutes consider online platforms as extraneous to the unlawful conduct performed by their users. The DMCA provides a system of exemption of liability based on some conditions – for instance, requiring online intermediaries to remove content once they become aware of their presence in their digital spaces.
Furthermore, unlike in the European framework, the protection of personal data lacks a federal legal framework as well as consistency among sectors. While the protection of privacy and personal data is expressly recognized as a fundamental right and linked to the individual rights of dignity and autonomy,Footnote 93 the US protection of these rights is not linked to the individual but rather to a mosaic theory under the Fourth Amendment,Footnote 94 and it is considered from a consumeristic rather than constitutional standpoint.Footnote 95 Even if data privacy regulation at national level, such as the California Data Privacy Regulation, has represented important steps forward, the focus of this instrument is still far from the European constitutional model.Footnote 96
Given the lack of a solid data protection law framework in the United States, the possibility to regulate online platforms firmly depends, even if not exclusively, on how broadly the right to free speech is protected. A regulation that requires private actors to comply with monitoring or removal obligations of online content is likely to be invalidated under the strict scrutiny test applied by the US Supreme Court. Therefore, the material and subjective scope of the First Amendment contributes to defining the boundaries of platform governance. It is because of the scope and interpretation of the First Amendment that online platforms have found a constitutional area to profit without responsibility.
The First Amendment has been interpreted extensively since the beginning of the twentieth century.Footnote 97 In Schenck v United States, Justice Holmes emphasized how freedom of expression can be restricted and outlined the doctrine of ‘clear and present danger’.Footnote 98 In Abrams v United States,Footnote 99 he also dissented with the majority opinion defining the bases of the free marketplace of ideas, as also named by Justice Douglas in United States v Rumely. Footnote 100 This metaphor frames the right to a free speech within a firm negative dimension that characterizes the liberal values of the nineteenth century. In other words, this image extends the neoclassic economic theory to the field of ideas.Footnote 101
Therefore, outside the scope of a ‘clear and present danger’, the free marketplace of ideas limits any attempt to restrict free speech which is subject to strict scrutiny. The US Supreme Court applied, and even extended, this frame in different cases.Footnote 102 However, the scope of the First Amendment could not be understood without focusing on hate speech and the doctrine of ‘imminent lawless action’ as defined in Brandenburg v Ohio. Footnote 103 By clarifying the notion of ‘clear and present danger’ in Schenck v United States and overruling Whitney v California,Footnote 104 the Supreme Court defined that the First Amendment protection does not cover expressions whose intention is to incite an imminent and likely violation of the law.Footnote 105 Although hate speech is one of the most extremist forms of expression, the court set a high standard for limiting this kind of expressions.
This broad frame of protection has also been extensively applied to the digital environment. At the end of the twentieth century, the Supreme Court had already dealt with the limits of the regulatory intervention in the field of free speech. In Reno v ACLU,Footnote 106 the court considered unconstitutional the provisions of the CDA concerning the criminalization of presenting obscene or indecent materials to any person under 18. The court distinguished traditional media and the internet by providing larger protection based on the idea that ‘the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material’.31 Not surprisingly, Justice Stevens underlined that the internet is the ‘new marketplace of ideas’ observing that ‘the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship’.Footnote 107 This position also led the Supreme Court to consider other legal measures as unconstitutional, thus making the First Amendment the bastion against any form of online speech regulation.Footnote 108 This judicial approach was also aligned with the liberal positions of those who considered the internet as a framework resisting the intervention of public actors.Footnote 109 It is thus thanks to the First Amendment – constitutional law rather than self-regulation – that public powers have been limited in the digital environment. The self-regulatory model of the cyberspace was generally questioned by scholars who have already underlined the law as a regulatory force of the digital environment,Footnote 110 as also demonstrated by the enforcement of public policies online.Footnote 111
This frame has not changed so far. The US Supreme Court has maintained, if not reinforced, its liberal approach to free speech online as shown in Packingham v North Carolina. Footnote 112 In a case involving a statute banning registered sex offenders from accessing social networking services to avoid any contact with minors, the court defined that the ‘most important places (in a spatial sense) for the exchange of views’ are not only the ‘vast democratic forums of the Internet’ but also ‘social media in particular’.Footnote 113 This ruling is another piece of the vast constitutional protection on which social media can rely against users’ claims. They can seek refuge in a safe constitutional area of protection under the First Amendment, which in the last 20 years has constituted a fundamental ban on any regulatory attempt to regulate speech online.
If the First Amendment achieves its purpose to limit the powers exercised by public actors, it fails to limit private abuses of freedoms. Together with the legal shields provided by constitutional and tort law, even the underpinning values of US contract law answer to the logic of digital liberalism and separation between public authority and private ordering. The principle of autonomy and the notion of consent are the basic pillars of US contract law, but they are also tools for governing private relationships when parties do not enjoy the same contractual position.Footnote 114 Already in 1943, Kessler tried to argue that freedom of contract is not a monolith notion but ‘Its meaning must change with the social importance of the type of contract.’Footnote 115 Precisely, he observed that contracts are tools through which entities can rebuild a feudal order and ‘legislate in a substantially authoritarian manner without using the appearance of authoritarian forms’.Footnote 116 Slawson supported a democratic view of contract law. He argued that contract law should take into account consumer protection, thus proposing a new scheme challenging traditional categories of contract law.Footnote 117 Likewise, according to Rakoff, the legal system should establish the terms and conditions for each transaction. He does not exclude that this process could be long and challenging, but it would lead to relying on a set of standards that does not suffer absolute private determinations.Footnote 118
This imbalance of power is particularly relevant in the relationship between platforms and users accepting that private agreements define a different standard of protection of their constitutional rights.Footnote 119 These principles build a barrier around the responsibilities of online platforms, leading to a process of ‘democratic degradation’.Footnote 120 In other words, the mix between constitutional, statutory and contract shields makes platforms the governors of the online environment; this made Silicon Valley possible,Footnote 121 and it expresses platform values.Footnote 122
Online platforms are among those that benefit the most from this legal framework. The First Amendment can be considered the constitutional legitimation of online platforms and, at the same time, a barrier against regulatory intervention. The relevance of the First Amendment has prevented most attempts of the US constitutional framework to react against the challenges raised by private powers online. In this sense, the US approach can be considered stagnant. The vertical and negative nature of liberties is still interpreted as a limit to the coercive power of the state. As a result, constitutional liberties apply vertically only to public actors to ensure the liberty and autonomy of individuals. In Civil Rights Cases, the Supreme Court clarified that the 14th Amendment limits ‘state action’ and not ‘individual invasion of individual rights’. Therefore, US constitutional law tends to consider state action as the only source of concern for fundamental rights and democratic values. When governments censor speech, users can rely on their First Amendment rights since constitutional law applies vertically. This guarantee does not occur when online platforms, as private actors, make decisions on freedom of expression like in the case of content removal.
The rigid distinction between public and private actors can be examined by looking at a recent case involving the Twitter account of the former President of the United States, Donald Trump. In Knight First Amendment Inst. at Columbia Univ v Trump,Footnote 123 some social media users were blocked from posting their comments on the tweets of the account @realDonaldTrump by Trump or his staff. In this case, the court recognized that ‘the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees’.Footnote 124 This decision is coherent with the idea that the person who manages the account of the President of the United States should be considered a public actor bound by the First Amendment obligations.
The outcome of the case would have been the opposite if Twitter had removed users’ comments since Twitter, as a private actor, is not bound by constitutional obligations. The case of the deplatforming of the former President Trump could be considered an example. In this case, it is important to stress the difference between the framework of social media platforms and that of Donald Trump’s individual account. Only the latter is considered a public forum and, therefore, its censorship is equivalent to offline government restrictions. As observed by the court, a public and governmental figure’s use of social media transforms a private space into a public forum. This decision is not an exception, but should be considered within an increasing established case law concerning the nature of private forums of social media.Footnote 125
However, there is an exception to this rigid structure: the ‘state action doctrine’, also known as the horizontal effect of fundamental rights. According to this doctrine, the constitutional obligation to respect fundamental rights extends to private parties, breaking the separation between public and private actors. This extension is because it is possible to detect a state action. Generally, the horizontal effect can result from constitutional obligations on private parties to respect fundamental rights (i.e. direct effect) or the application of fundamental rights through judicial interpretation (i.e. indirect effect). Only in the first case would a private entity have the right to rely directly on constitutional provisions to claim the violation of its rights vis-à-vis other private parties.
In the second case, the application of fundamental rights between private actors would be mediated. According to Gardbaum, ‘These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal).’Footnote 126 As Tushnet argues, if the doctrine of horizontal effect is considered ‘a response to the threat to liberty posed by concentrated private power, the solution is to require that all private actors conform to the norms applicable to governmental actors’.Footnote 127 Together with Peller, they have proposed to reject the distinction between public and private actors since, as they observe, any exercise of rights in a liberal system is highly subject to ‘the potential exercise of state power to prevent other private actors from interfering with the rights holder’.Footnote 128 In other words, this distinction is not useful if fundamental rights are considered in need of protection, even from a horizontal perspective through regulation. Moreover, the low degree of judicial coherence around state action would limit any rational and consistent application.Footnote 129
However, within the US framework, the Supreme Court has usually applied the vertical approach and the application of the horizontal approach would be considered the exception.Footnote 130 Consequently, US constitutional rights would generally lack horizontal effect not only in abstracto but also in relation to online platforms.Footnote 131 Therefore, given the lack of any regulation that translates constitutional rights into statutory norms, online platforms cannot be required to comply with First Amendment safeguards. Even lower courts have stressed that social media neither exercise exclusive public functions nor perform the activities of a company town. It is not by chance that users’ judicial attempts to challenge online platforms for the constitutional violation of their rights may have failed since the end of the last century.Footnote 132 Private actors do not qualify as state actors, and therefore they are not subject to First Amendment scrutiny. The fact that online platforms allow the use of their network to the public is not enough to extend the public forum doctrine or generally subject them to the First Amendment safeguards.
By analogy, a recent case of the US Supreme Court confirms the rigid vertical approach to free speech in the social media framework. In Manhattan Community Access Corp. v Halleck,Footnote 133 the Supreme Court lost an opportunity to provide a broader interpretation of the state action doctrine. Precisely, the court determined that the discretion of a non-profit corporation designated by New York City to run a public access television network limits free speech and violates First Amendment rights. In its ideological five to four ruling, the court determined that the television station was not considered a state actor, so it could not scrutinize the violation of the First Amendment. Notwithstanding that this case concerned public access channels, the property-interest arguments could have led to a broad impact on the protection of social media speech. The relevance of this decision is demonstrated by the fact that national case law has already relied on this decision to ban interference with platforms’ rights, as in PragerU v YouTube. Footnote 134 The Supreme Court not only clarified the three traditional means by which a private entity can be a state actor, but it also outlined how the power should have been exercised in order to be considered a state actor – precisely a power traditionally and exclusively performed by the government.Footnote 135 Given the precedents, most of the cases were limited to few functions,Footnote 136 mainly relating to elections or the organization of a company town.Footnote 137 An opposite decision would subject private actors to the First Amendment whenever they offer their property spaces for the exercise of the right to freedom of expression. The Supreme Court has already banned such extension in Hudgens v NLRB. Footnote 138
Nonetheless, in the past, the court has extended the scope of the state action doctrine. In Marsh v Alabama,Footnote 139 the Supreme Court upheld that a privately owned company town was subject to the First Amendment. As observed by Justice Black, ‘The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’Footnote 140 The words of Justice Black seem to extend well beyond the narrow approach of the Supreme Court in Halleck, which assesses the substantive effect rather than formal ownership. A broad interpretation of Halleck explains why users failed to challenge social media for violation of their First Amendment rights due to the removal of online content. Nonetheless, Marsh opens some leeway towards the extension of constitutional obligations to social media when they remove content. In other words, the two ideological approaches represent the tension between the vertical and horizontal application of fundamental rights in US constitutional law.
The vertical approach to constitutional rights in the US framework is still a barrier for regulating platform power. The rigidity of the public/private divide, which is also reflected in US contract law, leaves the private sector free to self-regulate spaces despite their public relevance. Market and democracy almost fully overlap in the US constitutional system, thus not promoting a move from a neoliberal approach to a democratic strategy. In this context, online platforms are free to perform their business, as engines of democracy, thus setting standards of protection without infringing constitutional rights. This liberal imprinting, also rooted in the quasi-absolute protection of the First Amendment, is considered one of the paradigmatic expressions of US digital constitutionalism.
V. Digital constitutionalism across the Atlantic and beyond
When considering digital constitutionalism on both sides of the Atlantic, the European and US models represent two diverging examples of how constitutional democracies address the challenges of the algorithmic society. Precisely, while the rise and consolidation of online platforms is considered an expression of freedoms according to the western side of the Atlantic, this trend would be considered as a threat to constitutional democracy from the European perspective.
The lack of horizontality in US constitutional law is not the rule for other constitutional democracies. On the other side the Atlantic, this general trust of a vertical paradigm of free speech seems to be mitigated. In Europe, the protection of freedom of expression does not enjoy the same degree of protection.Footnote 141 Some member states even ban some forms of speech, as demonstrated in the case of Yahoo v Licra. Footnote 142 Unlike the US Supreme Court, European courts have often adopted a frame of risk rather than opportunity when addressing the protection of the right to freedom of expression in the digital environment.Footnote 143 Moreover, even the doctrine of horizontal effects is considered under a different (and more extensive) constitutional light.Footnote 144 Also considering the role of the positive obligation of the state to respect and protect human rights as deriving from the framework of the Council of Europe,Footnote 145 this European constitutional framework demonstrates why the European Union has not found high barriers to mitigate platform powers.
The European approach to private powers is one example of the constitutional reactions against the challenges of the algorithmic society. While the implementation of digital technologies by public actors raises serious concerns, the rise of platform powers has been one of the primary drivers leading the European Union to abandon its digital liberal approach and adopt a democratic-oriented strategy. Economic freedoms are morphing into a new dimension, namely that of private power, which brings significant challenges to the role and tools of European constitutional law.
Given these challenges, the European Union reacted against platform power, thus emancipating itself from the US liberal approach. Although they are private actors, online platforms increasingly perform quasi-public powers that, given the lack of safeguards, are unaccountable, thus undermining individual rights and freedoms as well as democratic values. This approach is deeply rooted in the characteristics of European constitutionalism, where fundamental rights and freedoms interact with each other in a dialectic relationship of balancing. European constitutionalism does not tolerate granting absolute protection to a single right when this axiology could lead to the destruction of other fundamental interests, effectively undermining their constitutional relevance.Footnote 146 Likewise, the positive obligation for public actors to protect fundamental rights and freedoms is another example of the horizontal extension of European fundamental rights,Footnote 147 and it is another expression of the different understanding of the role of dignity on the eastern side of the Atlantic.Footnote 148
After the horrors of World War II, European states began to incorporate and codify human dignity within their founding values.Footnote 149 The post-war scenario was a decisive moment for the emergence of dignity as a European constitutional principle,Footnote 150 and it was elevated to ‘cornerstone of the postwar constitutional state’.Footnote 151 Moreover, dignity is not an isolated concept, but a foundational principle connected to the values and aspirations shaping European constitutionalism. It is not merely enshrined in the preamble of the Charter, but is protected as a separate and inviolable fundamental right.Footnote 152 The Lisbon Treaty has also recognized the role of human dignity as a pillar of European constitutionalism. Even if the preamble of the Treaty of the European Union only mentions human rights and the inalienable rights of human persons,Footnote 153 human dignity is enshrined as the primary common value of the European Union.
Therefore, human dignity as a constitutional foundation is the result of the process of the European experience, the values of which aim to foster a vision of democracy in which human beings can take decisions about their life and shape collective decisions. European digital constitutionalism does not allow the asymmetry of power between online platforms and individuals to put the latter in the hands of the former, which contributes to shaping the protection of rights and freedoms in the algorithmic society. Based on such constitutional framework, the rise of European digital constitutionalism is considered a reactive emancipation of the European Union to address the challenges raised by the consolidation of digital private powers.
Nonetheless, the European reactive approach is not the rule across the Atlantic. The United States has adopted an opposite approach that has not been reactive, but rooted in a phase of digital liberalism since the end of the twentieth century. Rather than being born out of chance, this outcome is precisely the result of different constitutional premises. The rise of the European approach has resulted from the intolerance of European constitutionalism to the disproportionate interferences with individual rights and democratic values as well as the marginalization of public authorities in the protection of these values. Alternatively, the framework of liberty characterizing US constitutionalism, constitutes the primary beacon guiding the approaches to the digital environment, and US digital constitutionalism.
The United States still assesses the challenges raised by new private powers online under the lens of digital liberalism. Online platforms are considered an engine of liberty rather than a threat to individual rights and democratic values. Even if online platforms increasingly perform functions traditionally held by public authorities, these actors are not bound to respect constitutional obligations, given the lack of any regulation requiring them to do so. This approach entails a liberal view of social relationships where the primary threats to fundamental rights and freedoms come from public actors rather than the private sector. The discretion that online platforms enjoy in performing their business is the result of a constitutional approach oriented to protecting the private sector from public interferences, thus maintaining a rigid separation between public and private actors. In the last 20 years, the US framework has not reacted to the rise of private powers, but has highly defended the concept of liberty written in stone in the protection of the First Amendment. The liberal approach of the United States may also be considered another expression of digital constitutionalism that demonstrates how, under US constitutional law, online platforms are considered enablers of liberties and democracy rather than a threat to these values.
The executive order to prevent online censorship provided an opportunity to reflect this constitutional tension.Footnote 154 Although the Biden administration revoked this act, the order is still an example of the constitutional deadlocks in the field of platform governance. While, in the last 20 years, nothing has changed in terms of regulating online platforms on the western side of the Atlantic,Footnote 155 this reaction is a reminder that states can impose their sovereign powers (and their values) online, thus underlining the connection between internet governance and constitutionalism. This presidential move resulted in a constitutional paradox.Footnote 156 Beyond the constitutional issues involving the separation of powers between the executive and legislative powers, as the former has no power to amend the work of the latter, the order is incoherent when considering how the First Amendment protects online intermediaries.Footnote 157 This eventual turning point in the US approach is also surprising when considering the legislative inertia of the US Congress in the last 20 years.
Likewise, moving from the legislative to the judicial power, this order would also be against the judicial orientation of the US Supreme Court. Without examining national case law such as Lewis v YouTube,Footnote 158 the Supreme Court defined social media as the vast democratic forum of the Internet in Packingham v North Carolina. Footnote 159 The order also refers to Pruneyard Shopping Center v Robins to argue that, although social media platforms are private actors, they provide a public forum online. Nonetheless, these cases deal with the banning of national law that introduces a prior restraint over free speech.Footnote 160 These cases should have been enough to impede the public interferences to free speech that this executive order introduces. Moreover, in Manhattan Community Access Corp. v Halleck,Footnote 161 the Supreme Court closed the door to a potential extension of the state action doctrine. Furthermore, in Gomez v Zuckenburg,Footnote 162 the court rejected a user’s complaint by recognizing that the order was not intended to, and did not, create any right or benefit, substantive or procedural, enforceable by law or in equity by any party against the United States or its departments, agencies, entities, officers, employees or agents. Therefore, this executive order was a small drop in the sea of platform regulation and governance, and this case confirms the path of US digital constitutionalism oriented to digital liberalism. Within this framework, the move of Donald Trump to sue online platforms has not changed this picture.Footnote 163
There is a debate about whether to resort to the figure of common carriage or as an alternative to places of public accommodation – especially in the aftermath of Justice Thomas’s concurring opinion in Biden v Knight First Amendment,Footnote 164 concerning Donald Trump’s moderation of speech by his Twitter followers. In the US framework, Crawford underlines that common carriage concerns would lead to overcoming First Amendment protection without requiring undue speech restraints.Footnote 165 Similarly, in the field of search engines, Pasquale underlines the threats beyond individual privacy, including range of biased and discriminatory information results.Footnote 166 However, these solutions seem distant in a system that seems to exclude any intervention that could reduce the freedoms of digital platforms.Footnote 167 The Executive Order on Promoting Competition in the American Economy adopted by President Biden is an example of how the US model is going back to competition, and the market, to remedy the power of online platforms.Footnote 168 This trend would also suggest why, despite their relevance, converging attempts to mitigate platform powers across the Atlantic, such as the EU–US Trade and Technology Council,Footnote 169 are likely to face the constitutional distance of the European and US models.
The different expressions of digital constitutionalism across the Atlantic demonstrate not only how the questions around platform governance are constitutional, but also how these diverging approaches also lead to different strategies to express (digital) sovereignty on a global scale.Footnote 170 Constitutional law indeed influences how power is exercised and the scope of constitutional rights. When dealing with the transnational dimension, constitutionalism tends to expand its reach beyond territorial boundaries.
The US neoliberal approach does not suggest a specific path to express public powers over the digital environment. The First Amendment has provided a shield against any public interference, leading US companies to extend their powers and standards of protection beyond a state’s territory. Nonetheless, even such a liberal approach hides an indirect way to exercise powers in the digital environment. Rather than intervening in the market, the United States has not changed its role and has observed its rise as the liberal hub of global tech giants. Regulating online platforms in the United States could affect the smooth development of the leading tech companies in the world, while also increasing the transparency of the cooperation between the government and online platforms in certain sectors such as security, thus unveiling the invisible handshake.Footnote 171 The Snowden revelations have already underlined how far governments rely on internet companies to extend their surveillance program and escape accountability.Footnote 172 In other words, the US strategy counts on the ability of the private sector to exercise powers on a global scale while benefiting from invisible cooperation with these actors.
While the United States seems to export its constitutional values through private actors operating on a global scale, given the lack of any regulation, the European Union is proposing a democratic model to address digital capitalism, and the consolidation of platform powers. More broadly, the Democracy Action Plan is the expression of the values that the European Union wants to promote transnationally.Footnote 173 Rather than adopting a mere neoliberal approach or supporting the development of its (authoritarian) model of the Internet, the Union is opting for a third way to ensure the protection of fundamental rights and democratic values from the interferences of private powers on a global scale.
The European Union has already demonstrated its ability to influence global dynamics, and scholars have referred to such attitude as the ‘Brussel effect’.Footnote 174 The European Union is increasingly aware of its ‘regulatory soft power’, influencing the policy of other areas of the world in the field of digital technologies. It has also started to build its narrative about digital sovereignty.Footnote 175 As underlined by the Commission, ‘European technological sovereignty starts from ensuring the integrity and resilience of our data infrastructure, networks and communications’, aimed at mitigating ‘dependency on other parts of the globe for the most crucial technologies’.Footnote 176 This understanding does not entail closing European boundaries to a form of constitutional protectionism, but ensuring Europe’s ability to define its own rules and values in the digital age. Since ‘European technological sovereignty is not defined against anyone else, but by focusing on the needs of Europeans and of the European social model’,Footnote 177 as a result ‘the EU will remain open to anyone willing to play by European rules and meet European standards, regardless of where they are based’.Footnote 178 These statements suggest that the European Union is defining a path towards serving a leading role in regulating the digital environment. Rather than only focusing on promoting the industry within its borders, the European Union is positioning itself as a global standard maker that is cooperative rather than adversarial.
The proposal for the Artificial Intelligence Act is an example of this trend.Footnote 179 On the one hand, the scope of the proposal extends to ‘providers placing on the market or putting into service AI systems in the Union, irrespective of whether those providers are established within the Union or in a third country’, thus providing a broader territorial coverage to ensure that European standards are taken seriously on a global scale. On the other hand, this instrument is considered an expression of constitutional protectionism based on European (constitutional) values. The top-down approach of the European Union, which aims to leave small margins to self-regulation, is an attempt to protect the internal market from technological standards that do not comply with the European standard of protection of European values, and therefore fundamental rights and democracy. Rather than making operators accountable for developing and implementing artificial intelligence systems, the regulation aims to prevent the consolidation of standards that, even if far from European constitutional values, could find a place in the internal market.
Even more clearly, the GDPR provides another example of the intention of the European Union to rise as a global regulator. The European framework of data protection has been a model for other legislations around the world,Footnote 180 and the UN Secretary-General has welcomed the European approach by underlining how this measure is inspiring for other countries and has encouraged the European Union and its member states to follow this path.Footnote 181 Furthermore, the adoption of the GDPR has led a growing number of companies to voluntarily comply with some of the rights and safeguards even for data subjects outside the territory of the European Union because protecting privacy and personal data has become a matter of reputation due to the increasing amount of data processed by public and private actors.
The recent spread of the pandemic has underlined the relevance of data protection safeguards for constitutional democracies when dealing with contact tracing applications or other forms of public surveillance.Footnote 182 Moreover, the GDPR has not only become a model at the global level, but also provides a scope of application that extends beyond the territory of the EU. Precisely, even though a data controller is established outside the European Union, EU law is nevertheless applicable if its processing activities are related either to the offering of goods and services in the European Union, or to people in the European Union, as well as the monitoring of the behaviour of data subjects in the European Union.Footnote 183
The long arm of European data protection law has been highlighted in the framework of the Data Protection Directive,Footnote 184 which has also been defined the ‘global reach of EU law’.Footnote 185 This over-reaching scope could affect free speech and financial interests of other countries and their citizens,Footnote 186 and decrease the degree of legal certainty leading to a binary approach that is not scalable.Footnote 187 The GDPR has also been criticized for its ‘privacy universalism’.Footnote 188 Proposing the GDPR as a global model entails exporting a Western conception of privacy and data protection that could clash with the values of other areas of the world, especially the Global South. Although other scholars do not share the same concerns, they have observed that ‘The result – conflicts of jurisdiction – may put an excessive burden on the individual, confuse him or her, and undermine the individual respect for judicial proceedings and create loss of confidence in the validity of law.’Footnote 189
The ECJ has also underlined these challenges in two decisions addressing the territorial scope of the right to be forgotten online,Footnote 190 and the global removal of online content.Footnote 191 In these cases, even if the ECJ did not exclude the possibility of global delisting, it left this decision to national courts, which are required to take into account the impact of removal on international law. These decisions underline the limits of extending constitutional values beyond territorial boundaries, and the openness of member states to international law could slow down the extension of the European regulatory model on a global scale. However, the influence of the European model does not only relate to the scope of EU law but also to the ability of the European Union to propose an alternative to neoliberal and authoritarian models of internet governance.
Such a third way, focused on the protection of fundamental rights and democracy on a global scale, is the result of the role of European digital constitutionalism, which has demonstrated how rights and freedoms cannot be frustrated only by formal doctrines based on territory and establishment. By extending the scope of its policies even outside the European framework, the European Union seems to adopt a mix of constitutional imperialism and protectionism by imposing its own legal standard of protection on a global scale. The consolidation of European digital constitutionalism is proposing a political and normative model as an alternative to neoliberal and authoritarian approaches. Rather than governing or neglecting market dynamics, the European Union is tailoring its role in between, to protect fundamental rights and democratic values in the algorithmic society.
VI. Conclusions
The consolidation of the algorithmic society has provided opportunities while challenging the protection of individual rights and freedoms as well as democratic values. This situation has led constitutional democracies across the Atlantic to adopt different approaches characterized by the predominance of diverging constitutional narratives.
Within this framework, the European Union has moved from a digital liberal approach to a constitutional democratic strategy to face new private forms of authority based on the exploitation of new automated technologies for processing content and data on a global scale. Judicial activism has played a critical role in shifting the approach from economic freedoms to fundamental rights. The translation into a normative framework of hard and soft law measures is observed in the reaction of European digital constitutionalism to the challenges raised by platform powers.
On the other side of the Atlantic, the US framework has not reacted to the rise of private powers; instead, it has highly defended the concept of liberty based on the protection of the First Amendment. The US liberal approach can be considered another expression of digital constitutionalism, showing how online platforms are enablers of liberties and democracy rather than a threat to such values. Still, the same liberal approach taken to dealing with online intermediaries at the end of the last century represents the US strategy to address the power of online platforms in the algorithmic society.
This framework of liberty has been increasingly left aside (or complemented) on the eastern side of the Atlantic, where the different constitutional premises based on human dignity have paved the way to a new constitutional approach. Despite its market orientation, the increasing relevant dimension of European constitutionalism has mitigated the goals of the internal market and the predominance of self-regulation. Unlike the United States, the European constitutional dimension does not allow the logics of digital capitalism to prevail over the social dimension of the European market.
When considering the consequences of different expressions of digital constitutionalism on a global scale, it is possible to observe how digital liberalism still characterizes the US approach, which relies on its digital platforms to export constitutional values while benefiting from their control through an invisible handshake. Instead, the European Union is rising as a global regulator that does not aim to follow a liberal approach or promote its digital business sector, but rather to become a standard maker for the protection of fundamental rights and democratic values on a global scale.
These constitutional approaches across the Atlantic show that, as an expression of modern constitutionalism, digital constitutionalism should not be considered a monolith. It is intimately connected with the constitutional framework of each legal and political system. Therefore, the European and US reactions to platform powers are expressions of digital constitutionalism reflecting diverging paths guided by different constitutional premises.
