MAURICIO FIGUERO
It is well acknowledged that the digital age has transformed the way people express and connect, but it has also undeniably affected the dynamics of power. The so-called algorithmic society has affected how people exercise their liberties and at the same time has intensified the economic and political power of Big Tech companies. These have become actors that exercise public authority and private ordering, far beyond their façade of mere market participants. With this perspective in mind, Giovanni De Gregorio has introduced the first comprehensive study of the emerging yet highly relevant field of Digital Constitutionalism in his book Digital Constitutionalism in Europe, published by Cambridge University Press in 2022 and made available Open Access.
But what does it all mean? How is constitutional law relevant in the digital environment? De Gregorio stresses that, by imposing limitations and regulating their internal infrastructures, these companies compete with public authorities to determine, shape, and manage users’ rights and freedoms — and in some cases they may succeed in imposing their private values over the State’s constitutional mandate. While some may still find it hard to conceive private actors as entities exercising public authority, especially in the digital context, De Gregorio provides a detailed explanation of how constitutional law serves a remedy for the abuse of power from Big Tech corporations. De Gregorio does not only succeed in clearly presenting his research in terms of methodology, but also in introducing Digital Constitutionalism as the comprehensive framework for safeguarding rights in the digital age.
Digital Constitutionalism in Europe explains how digital platforms have amassed their power, transforming themselves into de facto authorities that delimit users’ rights and enforce public policies outside the apparatus of the State. On top of that, the book clearly allows the reader to make sense of how these platforms have also several functions unique to their architecture and dynamics, this is what De Gregorio refers to as “quasi-public powers online” (p. 95). When a user enters into an agreement with a digital platform, the Terms of Service (ToS) are far more than a simple instrument of contract law, these are factual instruments of vertical regulation that serve as a means for the exercising of authority over the users. This takes place, again, in the context of opacity, lack of participation and with no mechanisms that explain how and why they take these decisions. What can public law do? Is not this all governed by contract law?
In order to explain the role of constitutional law, in chapter 4 De Gregorio elaborates on the intersection between content and data in the algorithmic society. While these two regimes have been originally conceived of as separate tracks, De Gregorio proves that the two overlap more often than not. He provides solid examples that show how the two are intertwined, such as the case of search engines and social media. De Gregorio does not only demonstrate how the two legal regimes are connected with each other but also highlights how inconvenient it is for courts to apply a rigid separation between the two systems.
Then, in chapter 5, he explores in-depth Freedom of Expression in the context of European Digital Constitutionalism, a foundational right for any democratic society. This right, however, has been subject to major challenges in the context of digital technologies. This is mostly exemplified by the private enforcement of content moderation practices by digital platforms, and the imposing of corporate interests over public values. De Gregorio conveys that Digital Constitutionalism has found its way to counter the discretionary mechanisms of these companies. This is reflected across specific normative instruments in the European Union, such as the Directive of Copyright in the Digital Single Market, or the Regulation of Terrorist Content. But this regulatory framework is not focused on content regulation, it rather establishes procedural safeguards to foster more transparent and accountable mechanisms. This is a major example of how constitutional principles are of relevance in safeguarding digital spaces.
Then De Gregorio in chapter 6 provides an explanation of the evolution of privacy and how private data fuels the algorithmic society. In this regard, the role of European Digital Constitutionalism is not restricted to a traditional interpretation of the General Data Protection Regulation (GDPR). In fact, De Gregorio explains that it is necessary to look at this instrument with a new teleological perspective, not only focussing on the obligations it imposes but also looking at it as a catalyst of positive responsibility to intervene at the horizontal level towards the protection of human dignity.
In the last chapter, De Gregorio illustrates the possible futures of European Digital Constitutionalism. He first points out that, while not closing its doors to digital capitalism, Europe embraces digital humanism. In this regard, European Digital Constitutionalism serves as a means to balance market development concerns and the protection of human dignity and democratic values. He then analyses the contrast between public and private ordering. De Gregorio explains that, in the middle of the two poles represented by the Chinese and American models, Europe is fostering a co-regulatory approach, laying out the public values which set the framework within which the private sector operates. Lastly, he answers the question “how far could Digital European Constitutionalism extend its influence to protect fundamental rights?”. It is clear — De Gregorio maintains — that the Union does not have the intention to promote its industry, but rather it is concerned with rising as a global standard-maker. This is evident, for instance, in the influence that the GDPR has attained outside Europe.
Although it is not expressly mentioned in his book, De Gregorio’s findings resonate with the distinction that permeates until today between the continental and common law traditions: the role of the State. This is distinctly evident in the context of American Law, where commodification and market efficiency play a major role in the legal system, and therefore the role of the State is conceived of differently from the one in continental law. As Katharina Pistor explains (The Code of Capital, Princeton University Press, 2019), the institution of property that emerged in Britain was originally limited and restricted; it was not until the fall of the Middle Ages that property started to be regarded as a complete right with formal titles. This was the concept that arrived to Britain’s North American colonies. This explains why, for instance, the legal narrative of property and the lack of State intervention play out so strongly in the American legal system. In this regard, the American legal landscape privileges property, freedom, innovation, and wealth, whereas Europe leans towards the protection of human dignity and safeguarding of fundamental rights.
It is to be noted that De Gregorio’s Digital Constitutionalism in Europe is a work worthy of recognition and dissemination, precisely because it superbly presents Digital Constitutionalism as a comprehensive methodology to analyse rights in the algorithmic society. As opposed to presenting a stand-alone proposal for reform or a specific amendment to the EU legal system, De Gregorio introduces an innovative lens to protect and place human dignity at the centre of the legal discussion.
The complexity of the algorithmic society makes it a potential field of analysis from different legal optics, such as competition, consumer, contract law or privacy law. The problem is that those branches alone cannot fully grasp the problems related to the private ordering and authority that digital platforms impose over their users. In that regard, Digital Constitutionalism provides a holistic view to interpret and safeguard fundamental rights in the digital context.
At several times, the rhetoric of freedom, liberties and innovation has been used to shield private corporations and their abuse of power. This attitude favours the status quo and diminishes the rights of citizens in the digital age. In that regard, De Gregorio’s research plainly sheds light on the factual nature of platforms and how we can protect human dignity from the abuse of power of technology giants.
This book refreshes the reflection on digital technologies and human rights, and must be regarded as a starting point for further discussion, not as a final stage of debate. This work reflects indeed a new moment in legal academia, where constitutional and legal technology scholars must both take part.