Digital constitutionalism: a new systematic theorisation

ABSTRACT

‘Digital constitutionalism’ is an appealing concept to explain the recent emergence of constitutional counteractions against the challenges produced by digital technology. However, the existing scholarship does not offer a unitary picture of this notion. This paper carries out a literature review of the topic and suggests a new systematisation of the theoretical framework surrounding the concept of digital constitutionalism. It is argued that digital constitutionalism is the ideology that adapts the values of contemporary constitutionalism to the digital society. It does not identify the normative responses to the challenges of digital technology, but rather embodies the set of principles and values that informs and guides them. Conversely, the emerging normative responses can be regarded as the components of a process of constitutionalisation of the digital environment. In light of the adopted definitions, the paper ultimately illustrates a new way of mapping the constitutional responses that have emerged to address the challenges of digital technology. They not only include the constitutional tools that we could define as ‘classic’ in the context of constitutional theory, such as the binding legal texts produced in the state-centric dimension, but, significantly, also new instruments, which are developed in the transnational dimension of private actors.

KEYWORDS:

• Constitutionalisation
• Internet bills of rights
• private actors

Acknowledgments

I presented an earlier version of this paper at the annual BILETA Conference in Aberdeen. I am thankful to all those who attended my presentation at the final discussion of the Google Prize for their stimulating questions. This manuscript expands and refines my first systematic thoughts on digital constitutionalism, which I previously published in the working paper series of the Humboldt Institute for Internet and Society (HIIG). This article represents the main output of my research stay at HIIG, where I benefited from many discussions with Prof Ingolf Pernice, Dr Christian Djeffal, Dr Jörg Pohle and Julian Hölzel of the research team ‘Global Constitutionalism’. Special thanks go to my colleague Louis Rolfes of the Humboldt Universität zu Berlin for his constructive criticism and for the long conversations on constitutional theory. Last, but not least, I would like to express my gratitude to my supervisor, Dr TJ McIntyre, for his valuable suggestions, and to the anonymous reviewers of IRLCT, who encouraged me to clarify complex passages of the article.

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Edoardo Celeste http://orcid.org/0000-0003-1984-4142

Notes

1. See, e.g. Conseil constitutionnel (France), decision n° 2009–580 DC du 10 juin 2009, para. 12, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/cc-2009580dc.pdf; Sala Constitucional de la Corte Suprema de Justicia (Costa Rica), sentencia n° 12790 de 30 de Julio de 2010, https://www.poder-judicial.go.cr/salaconstitucional/index.php/servicios-publicos/759-10-012790; ECtHR, Cengiz and Others v. Turkey [2015] (Applications nos. 48226/10 and 14027/11), para. 49; Law no. 12.965/2014 (Brazil), so-called ‘Marco Civil da Internet’, Article 4 and 7, https://www.publicknowledge.org/assets/uploads/documents/APPROVED-MARCO-CIVIL-MAY-2014.pdf.

2. See, e.g. Article L311-1 of the Code des relations entre le public et l’administration, as modified by Article 3 of the Loi n° 2016–1321 du 7 octobre 2016 pour une République numérique (France); Article 2 of the Legislative Decree no. 33/2013 (Italy); Article 6, 10, 11, and 12 of Regulation (EC) 1049/2011 (EU).

3. Suzor adopts a broad definition of virtual communities encompassing the whole spectrum of online social platforms, from social media to online forums and chat rooms (see Suzor 2010, 27).

4. Suzor refers to Dicey’s doctrine on the role of private law in countries, like the United Kingdom, with an unwritten constitution: ‘This project follows somewhat from A V Dicey’s argument that in the absence of a substantive written constitution, rule of law principles in the United Kingdom were protected by the evolution of private law doctrines that secured the substantive rights of citizens.’ (2010, 53).

5. Suzor explicitly refers to the model developed by Jeanne P. Mifsud Bonnici (2008).

6. Suzor refers to Balkin (2004). In particular, he mentions as an example of successful joint governance model Wikipedia, while, as an example of failure, Facebook’s attempt to involve its users in the process of revision of its terms of use.

7. Landgericht Bonn, Urteil vom 16. November 1999, 10 O 457/99, https://openjur.de/u/150000.html.

8. They mention as an example the adoption in Brazil of the so-called Marco Civil da Internet, Law no. 12.965, 23 April 2014 (see Medeiros and Bygrave 2015).

9. Redeker, Gill and Gasser explicitly exclude to deal with these principles because their analysis ‘focus[es] on documents that aim at transforming Internet governance per se – even if limited by some documents’ spatial focus, rather than a document defining the rules governing one particular organisation, however great the importance of the organisation for the governance of the Internet’ (2018, 307).

10. For example, the concept of digital constitutionalism does not correspond, as some scholars seem to suggest, to the documents of Internet bill of rights (see Padovani and Santaniello 2018; Yilma 2017). As correctly specified by Redeker, Gill and Gasser, digital constitutionalism is ‘a common term to connect a constellation of initiatives’ (2018, 302). Therefore, it connects, but it is not the constellation of initiatives analysed by Redeker, Gill and Gasser. Digital constitutionalism is the ideology which permeates, guides, informs the emergence of the Internet bills of rights – but not only of these documents, as we will see in section 5.

11. Admittedly, their papers focused on private actors. Therefore, one could argue that these authors do not exclude that the concept of digital constitutionalism may be referred to the limitation of public actors. Evidence of that is the fact that Fitzgerald, Berman, Suzor and Karavas are well conscious that they are adapting the concept of constitutionalism, traditionally associated with the context of public power, to the limitation of private power.

12. Padovani and Santaniello (2018), for instance, exclude that the emergence of documents of Internet bills of rights could be the evidence of an ongoing process of constitutionalisation. However, they argue that the appearance of these texts is a necessary – but not sufficient – precondition for a process of constitutionalisation of the Internet. Conversely, it is submitted that a process of constitutionalisation starts from the theorisation of constitutional principles, and cannot be reduced to the final institutionalisation and positivisation of the latter.

13. See, as an example of norm aiming to recognise an amplification of the possibility to exercise existing fundamental rights, the right to participate in the Information society enshrined in 2001 in Article 5A of the Greek constitution, http://www.hellenicparliament.gr/UserFiles/f3c70a23-7696-49db-9148-f24dce6a27c8/001-156%20aggliko.pdf.

14. See, as an example of norm aiming to recognise an amplification of the possibility to exercise existing fundamental rights, the right to Internet access in Article 4 and 7 of the Brazilian Law no. 12.965/2014 (Marco Civil da Internet), https://www.publicknowledge.org/assets/uploads/documents/APPROVED-MARCO-CIVIL-MAY-2014.pdf.

15. See, as an example of norm aiming to recognise an amplification of the possibility to exercise existing fundamental rights, the decision of the French Conseil constitutionnel no. 2009–580 DC of 10th June 2009, at 12, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/cc-2009580dc.pdf.

16. See, as an example of norm aiming to recognise an amplification of the possibility to exercise existing fundamental rights, the right of persons with disabilities to access to ICT in Article 9(1) of the UN Convention on the Rights of Persons with Disabilities adopted in 2006, https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-9-accessibility.html.

17. See, as an example of norm aiming to limit potential violation of existing fundamental rights, the introduction in the EU of new data protection principles by Regulation (EU) 2016/679 (General Data Protection Regulation).

18. See, as an example of norm aiming to recognise an amplification of the possibility to exercise existing fundamental rights, the recognition by the European Court of Human Rights of the crucial role that Internet plays as one the principal means to exercise the right to freedom of expression, in ECtHR, Cengiz and Others v. Turkey [2015] (Applications no. 48226/10 and 14027/11), para. 49.

19. See, e.g., Principles 3 and 8 of ‘The 10 Internet Rights & Principles’, http://internetrightsandprinciples.org/site/wp-content/uploads/2018/01/IRPC_english_5thedition.pdf.

20. See, e.g., Principle 5 of ‘The 10 Internet Rights & Principles’.

21. See, e.g., Principle 10 of ‘The 10 Internet Rights & Principles’.

22. See, e.g., Facebook’s Principles no. 1, 3, 4, 5, 6, 7, and 10, https://www.facebook.com/principles.php.

23. See, e.g., Facebook’s Principles no. 2.

24. See, e.g., Facebook’s Principles no. 9.

25. See, e.g., Facebook’s Principles no. 9. Historically, Facebook went even further: in 2009 the company of Menlo Park announced for the first time to give its users the opportunity not only to comment, but even to vote the set of terms they preferred (see Zittrain 2009; Celeste 2018b).

Additional information

Funding

I gratefully acknowledge the support of the Irish Research Council Government of Ireland Postgraduate Scholarship scheme, and of the Sutherland School of Law, University College Dublin.