The quadrangular shape of the geometry of digital power(s) and the move towards a procedural digital constitutionalism

• Published date: 01 January 2023
• Author: Oreste Pollicino
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/eulj.12472

VARIETY: ORIGINAL ARTICLE

The quadrangular shape of the geometry of digital

power(s) and the move towards a procedural

digital constitutionalism

Oreste Pollicino

*

Abstract

The paper explores the evolution of private powers in the digital landscape, developing a quadran-

gular systematisation of such a phenomenon based on four main aspects: space, values, (private)

actors, and (digital) constitutional remedies. Taking a trans-Atlantic approach, the paper shows how

these categories, typical of constitutionalism, apply to the context of the Internet and of new digital

technologies both in the United States and in Europe. On the one hand, the United States has up to

now maintained the supremacy of the notorious Section 230 of the Communications Decency Act.

On the other hand, European legislation has undergone a significant change, moving from a phase

of digital liberalism, of which the 2000 E-Commerce Directive is the emblem, towards a new era of

digital constitutionalism, passing through the age of judicial activism of European courts. In this

sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view

to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolu-

tion of digital constitutionalism, from a vertical-sectoral approach to a horizontal and procedure-

based one, significantly showcased by the recent Digital Services Package, is underscored, signalling

the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the

paper argues that the great benefit of stressing the procedural dimension, which may be defined as

a European application of “due (data) process”to the relationship between individuals and private

powers, is that it is potentially able to help consolidate a (necessary) trans-Atlantic bridge.

1|INTRODUCTION

What are the signs and constituent elements of private digital power? Why have the emergence and consolidation

of this power been so significant for constitutional law, and why is it not (or no longer) simply a matter that can be

* Oreste Pollicino, Full Professor of Constitutional Law, Bocconi University, Milan (Italy); Member of the Management Board of the European Union

Agency for Fundamental Rights.

Received: 3 May 2023 Revised: 12 June 2023 Accepted: 29 June 2023

DOI: 10.1111/eulj.12472

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2023 The Author. European Law Journal published by John Wiley & Sons Ltd.

10 Eur Law J. 2023;29:10–30.

wileyonlinelibrary.com/journal/eulj

dealt with using the instruments of antitrust law? When and why did the most important digital companies at global

level metamorphose from economic operators into full-blown private powers often in competition with public

authorities? What tools are available to constitutionalism, considered from a trans-Atlantic perspective, to counter

the exponential expansion of these powers, taking account of the relevant constellation of the rights in play, from

freedom of expression through the protection of freedom of enterprise to the right to privacy?

These are the research questions that the following pages will attempt to answer.

There is a growing literature related to the relationship between constitutional law and private powers in cyber-

space and to the emerging notion of digitalconstitutionalism.

1

However until now, therehave been no analyses of the

constitutiveelements of the geometry of digital power,of the process of “transfiguration”thathas transformed private

actors in cyberspacefrom economic operators into genuine private powers,or of the reaction that this transfiguration

has triggered on the part of modern constitutionalism. Constitutionalism has been forced to identify a new scope of

action in order to remaintrue to its original mission of limiting powerin order to ensure respect for fundamental rights,

the rule of law and democracy which may be affected negatively in the absence of adequate mechanisms of checks

and balances.Specifically, this study will shiftits focus from a classical verticalapproach juxtaposing authorityand free-

dom towardsa horizontal approach.The objective will be to identifythe most suitable instrumentsfor limiting and con-

taining the privatepower wielded by major online platforms.A new geometry of digital powers will be proposed, based

on a quadrangularshape, and this shall representthe main argument and the addedvalue to the existing literature.

The reference to geometry has been used already by Jack Balkin who, noting how digital power (in particular

with regard to freedom of expression) is characterised by the fact that it transcends the binary relationship between

public power and individual user, has incorporated a third level (or corner) and on this basis has recently coined the

metaphor of ‘free speech as a triangle’, with the third corner being occupied by private platforms.

2

Within the

account proposed here, the geometry of digital power will instead be conceptualised as having a quadrangular shape

corresponding to the four constitutive dimensions: 1. space; 2. values; 3. actors; and 4. remedial (with the fourth

focusing on the responses of constitutionalism to the consolidation of that power).

The reason for this quadripartite division may be summarised as follows: within the new algorithmic society, pri-

vate transnational corporations (operators) are de facto increasingly performing public functions through the “gover-

nance”of digital spaces (space). Within this context, the value framework that characterises the European legal

order on the one hand and the US system on the other hand, especially as regards the balancing of the rights at play

(axiological dimension), is fundamental in understanding why different constitutional reactions by different legal

orders are heavily influenced by the value-based approach which characterises the respective bills of rights and the

constitutional case-law of the legal orders at stake. The last relevant corner is the one corresponding to the constitu-

tional remedies dimension. It bears the question of what instruments are available to public law to counter and to

limit private digital powers, which appear, however, to be following an increasing growth trajectory.

The article will therefore be structured according to this quadripartite understanding corresponding to the qua-

drangular shape of the new geometry of digital power(s). Section 2will consider the first constituent element of the

mentioned geometry,namely space (and territory). Section 3will focus, looking at the second constitutive element, on

trans-Atlanticdiversity in terms of the values and judicialframes endorsed, respectively,by European courts and by the

US Supreme Courtas regards their approach to technology.Section 4will then focus on the third constituentelement,

involving the major platforms and their metamorphosis into private powers. Finally, Section 5will examine, as the

fourth and last element of the quadrangular shape, the potential responses from US and European constitutionalism

to limit the amplification of privatedigital power. The article will thenend with some brief concluding remarks.

1

G. De Gregorio, ‘The Rise of Digital Constitutionalism in the European Union’, (2021) 19 International Journal of Constitutional Law, 41; O. Pollicino,

Judicial Protection of Fundamental Rights Online: A Road Towards Digital Constitutionalism? (Hart, 2021); G. De Gregorio, Digital Constitutionalism in Europe:

Reframing Rights and Powers in the Algorithmic Society (Cambridge University Press, 2022); E. Celeste, ‘Digital Constitutionalism: A New Systematic

Theorisation’, (2019) 33 International Review of Law, Computers & Technology, 76; N. Suzor, ‘Digital Constitutionalism: Using the Rule of Law to Evaluate

the Legitimacy of Governance by Platforms’, (2018) 4 Social Media +Society (2018), 10.1177/2056305118787812; D. Redeker, L. Gill and U. Gasser,

‘Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights’, (2018) 80 International Communication Gazette, 302.

2

J.M. Balkin, ‘Free Speech is a Triangle’, (2018) 118 Columbia Law Review, 2011.

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