The Rise of Digital Constitutionalism in the European Union
19(1) International Journal of Constitutional Law, 2020, 41-70
28 Pages Posted: 10 Jan 2020 Last revised: 25 Jun 2021
Date Written: 2019
In the last twenty years, the EU policy in the field of digital technologies has shifted from a liberal economic perspective to a constitutional-based approach. The development of digital technologies has not only challenged the protection of individuals’ fundamental rights such as freedom of expression and data protection. Even more importantly, this new technological framework has also empowered transnational corporations operating in the digital environment as hosting providers to perform quasi-public functions in the transnational context. These two drivers have led the Union to enter into a new phase of modern constitutionalism (ie digital constitutionalism). This work analyzes the path (and the reasons) leading the EU policy to move a liberal to a constitutional approach concerning the digital environment in the last thirty years. The primary goal of this article is to describe the characteristics of digital constitutionalism as a new constitutional moment and outline the potential evolution of the EU policy in the global context. This evolution is described by three constitutional phases: digital liberalism, judicial activism and digital constitutionalism. At the end of the last century, the Union adopted a liberal approach. A strict regulation of the online environment would have damaged the growth of the internal market, exactly when new technologies were going to revolutionize the entire society and promising new opportunities for the internal marked. The end of this first season was the result of the emergence of the Nice Charter as a bill of rights and new challenges raised by private actors in the digital environment. In this phase, the ECJ has played a pivotal role in moving the EU standpoint from fundamental freedoms to fundamental rights. This second phase has only anticipated a new season of constitutionalism based on codifying of the ECJ’s case law and limiting online platforms’ powers within the framework of the Digital Single Market. The path of digital constitutionalism is still at the beginning. A fourth phase of EU constitutionalism is around the corner based on the extension of constitutional values beyond EU borders and the expression of a human-centric technological model in a global context.
Keywords: Constitutional Law, Digital Constitutionalism, Freedom of Expression, Data Protection, Democracy, Artificial Intelligence
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