Mapping the values of digital constitutionalism: guiding posts for digital Europe?

Abstract

Since its development, the face of the internet has changed drastically, both in terms of the technology employed, the number of users, the impact and interwovenness with the lives of people and the activities of businesses all over the world. This rapid development, while clearing the way for increased production of wealth, facilitating communication, and allowing for the creation of new economic activities, has also had indelible impacts on the day-to-day lives of ordinary citizens and of constitutional democracies. These impacts seem to result from the increased platformisation of the internet, the concentration of market power around a handful of economic operators (gatekeepers), and the wide-ranging powers these operators enjoy in setting the conditions and restrictions they see fit in their terms of service. In this context, academia has highlighted many of the issues this scenario has brought about and the concerns it raises for the protection of fundamental rights and democracy. To address such issues, two approaches appear to take centre stage: a watered-down version of the early libertarian aspirations for the internet, on one hand; and, on the opposite side, a state-centric regulatory approach. A third path seems to have formed recently, that of digital constitutionalism, which looks to translate the traditional safeguards of modern constitutionalism to the digital realm, complementing them with innovative means, in light of the specific needs created by technologies such as algorithmic techniques, profiling and artificial intelligence. In this paper, we investigate the theory of digital constitutionalism and isolate its core values with a view to lay the groundwork for future research dedicated to assessing whether EU law and policy on digital services have adhered to them.