The argument of non-coherence can be useful for explaining two principally different approaches about the interrelationship between constitutional principles originating from the offline reality and their applicability in the online domain. The first says that the constitutional ideas of the digital domain originate from the offline domain, and the second says that they do not, their origin being from inside the online domain in isolation from the offline. The process of the transposition of human rights law from one domain to another, including constitutional principles, has three stages. The first has to do with the reasons for such a transposition. The second stage is the emergence of ideas and subsequent discourse saying that something in human rights law and/or practice has to be changed in order to provide adequate protection online. The third stage of the transposition of offline fundamental rights to the online domain is the acceptance of new rights or principles, or conversely, the rejection of claims due to the absence of their necessity.

This chapter offers a synthesis on the role the law has to play in Automated States. Arguing for a new research and regulatory agenda on AI and ADM beyond the artificial ‘public’ and ‘private’ divide, it seeks to identify new approach and safeguards necessary to make AI companies and the Automated States accountable to their customers, citizens and communities. I argue that emphasis on procedural safeguards alone – or what I call procedural fetishism – is not enough to counter the unprecedented levels of AI power in the Automated States. Only by shifting our perspective from procedural to substantive, we can search for new ways to regulate the future in the Automated States. The chapter concludes the collection with an elaboration of what more substantive regulation should look like: create a global instrument on data privacy, redistribute wealth and power by breaking and taxing AI companies, increasing public scrutiny and adopting prohibitive laws; democratizing AI companies by making them public utilities, and giving people a say how these companies should be governed. Crucially, we must also decolonize future AI regulation by recognizing colonial practices of extraction and exploitation and paying attention to the voices of Indigenous peoples and communities of the so-called Global South. With all these mutually reinforcing efforts, the new AI regulation will debunk the corporate and state agenda of procedural fetishism and establish a new social contract in the age of AI.

This chapter aims to analyse the evolving technological and legal intersection between content and data in the algorithmic society. The shift from parallel track to overlapping layers of these two fields contributes to examining platform powers and understand the role of European digital constitutionalism. The first part examines the points of convergence and divergence between the legal regimes introduced by the e-Commerce Directive and the Data Protection Directive. In the second part, two examples shows how the relationship between the two systems has evolved, looking in particular at how technological convergence has led to overlapping layers between the the fields of content and data which were conceived on parallel tracks. The third part examines the role of European digital constitutionalism with a specific focus on three paths of legal convergence.

This chapter underlines how, in the field of data, European digital constitutionalism would not suggest introducing new safeguards but providing a teleological interpretation of the GDPR unveiling its constitutional dimension. The first part of this chapter focuses on the rise and consolidation of data protection in the European framework. The second part addresses the rise of the big data environment and the constitutional challenges introduced by automated decision-making technologies. The third part focuses on the GDPR underlining the opportunities and challenges of European data protection law concerning artificial intelligence. This part aims to highlight to what extent the system of the GDPR can ensure the protection of the right to privacy and data protection in relation to artificial intelligence technologies. The fourth part underlines the constitutional values underpinning the GDPR to provide a constitutional interpretation of how European data protection law, as one of the more mature expression of European digital constitutionalism, can mitigate the rise of unaccountable powers in the algorithmic society.

This chapter analyses the path leading the Union to shift from a liberal approach to a democratic constitutional strategy to address the consolidation of platforms powers. This chapter aims to explain the reasons for this paradigmatic shift looking at content and data as the two paradigmatic areas to examine the rise of a new phase of European digital constitutionalism. This chapter focuses on three phases: digital liberalism, judicial activism and digital constitutionalism. The first part of this chapter frames the first steps taken by the Union in the phase of digital liberalism at the end of the last century. The second part analyses the role of judicial activism in moving the attention from fundamental freedoms to fundamental rights online in the aftermath of the adoption of the Lisbon Treaty. The third part examines the shift in the approach of the Union towards a constitutional democratic strategy and the consolidation of European digital constitutionalism.

This chapter highlights the reasons for the turning of freedoms to more extensive forms of private power by online platforms. Understanding the characteristics of platform power is critical to understand the remedies mitigating this constitutional challenge. This chapter analyses the two interrelated forms through which platforms exercise powers in the digital environment: delegated and autonomous powers. The first part of the chapter analyses the reasons for a governance shift from public to private actors in the digital environment. The second part examines delegated powers in the field of content and data while the third part focuses on the exercise of autonomous powers competing with public authority.

This chapter underlines how European digital constitutionalism supports the introduction of remedies in the field of content to protect freedom of expression in the algorithmic society. The first part of this chapter analyses the shift from a liberal economic narrative based on the metaphor of the free marketplace of ideas to the rise of online platforms power in moderating online content. Precisely, it focuses on the logic of content moderation, the rise of the algorithmic public sphere and the challenges to the protection of the right to freedom of expression raised by the private enforcement of fundamental rights. The second part focuses on the current status quo, underlining the first step of European digital constitutionalism to limit platform power and focusing on the horizontal effect doctrine as a potential way to fill the regulatory gap in the field of content moderation. The third part provides the approach which European digital constitutionalism would design to address the challenges of content moderation focusing on rethinking online media pluralism through transparency and procedural safeguards.

This chapter introduces the research questions, methodology and structure of the book. The first part defines the primary goal of the book consisting of reframing the role of constitutional democracies in the algorithmic society and introduces the notion of digital constitutionalism. The second part underlines the path of constitutionalisation which has led to the rise of multiple entities expressing their norms and spaces. The third part underlines the talent of European constitutionalism to react against the consolidation of digital powers while the fourth and fifth part defines the research questions and structure of the book.

This chapter argues that the characteristics of European digital constitutionalism would lead to find a third way escaping polarisation. The primary goal of this chapter is to underline how the talent of European digital constitutionalism would promote a sustainable growth of the internal market while protecting fundamental rights and democratic values in the long run. The first part of this chapter focuses on the relationship between digital humanism and digital capitalism underlining the potential path characterising the European approach to artificial intelligence technologies. The second part examines how European digital constitutionalism would lead to a third way between public authority and private ordering. The third part underlines to what extent the Union would likely extend the scope of its constitutional values to address the global challenges of artificial intelligence technologies. Once this chapter addresses the potential road ahead of European digital constitutionalism, the fourth part summarises the primary findings of this research.

In 1215, on a floodplain on the bank of the River Thames, King John of England met with a group of rebel barons to negotiate a peace treaty. The meeting at Runnymede, about halfway between the fortress of Windsor Castle and the camp of the rebels, became one of the most significant events of Western political history. After raising heavy taxes to fund an expensive and disastrous war in France, King John was deeply unpopular at home. He ruled with might and divine right; the king was above the law. He regularly used the justice system to suppress and imprison his political opponents and to extort more funds from his feudal lords. The peace charter promised an end to the arbitrary rule of the king, guaranteeing the liberties of feudal lords. The document became known as Magna Carta (the “great charter”), described by Lord Denning as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”1

In 1215, on a floodplain on the bank of the River Thames, King John of England met with a group of rebel barons to negotiate a peace treaty. The meeting at Runnymede, about halfway between the fortress of Windsor Castle and the camp of the rebels, became one of the most significant events of Western political history. After raising heavy taxes to fund an expensive and disastrous war in France, King John was deeply unpopular at home. He ruled with might and divine right; the king was above the law. He regularly used the justice system to suppress and imprison his political opponents and to extort more funds from his feudal lords. The peace charter promised an end to the arbitrary rule of the king, guaranteeing the liberties of feudal lords. The document became known as Magna Carta (the “great charter”), described by Lord Denning as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”1