This article explores the use of constitutional narratives in social media platform governance, addressing the concept of digital constitutionalism. It aims to elucidate how digital constitutionalism manifests in platforms and the implications for democratizing these governance environments. It argues that digital constitutionalism exposes three goals toward platform governance: (1) an analogous application of constitutional values in private landscapes; (2) an ideological framework permeating multiple normativity levels; and (3) a policy consideration framing the symmetry of regulatory efforts with fundamental values. These three objectives hinge on a liberal and normative approach to constitutionalism, detaching from the political and social considerations at the centre of constitutional democracy. The article argues that this leads to extensive legitimacy issues when considering the transnational character of social media platforms and the localized issues of its users, as explored through an analysis of Meta’s Oversight Board. It is argued that a societal perspective of (digital) constitutionalism must guide the institution’s goals and procedures to promote legitimacy and accountability. This societal approach exposes the reliability issues of the established self-referencing system. It also allows an analysis of the hybridization of traditional constitutional principles in the emerging societal constitution developed by the corporation.

This paper argues that in platform-based digitalisation of international trade processes, the use of blockchain instead of a central database system does not by itself adequately address the platform provider’s potential to engage in opportunistic behaviour. Digital transformation of international trade is, thus, constrained by hold-up problems. This requires embedding governance mechanisms in platform rulebooks designed to establish trust and commonality of interests. The article proposes a governance mechanism to promote widespread digital adoption through contract design choices based on guiding principles that can establish legally enforceable behavioural standards which align with the relational characteristics of digital trade networks.

This paper aims to question the dominance of human rights as the primary normative framework for European social media regulation, and academic research in this field. Analysing EU legislation and recent ECJ cases, it shows that issues like discriminatory content moderation, profiling, and promotion of stereotypes cannot adequately be addressed within a human rights framework. The centrality of individual rights in the EU legal regime not only fails to address collective issues, like platforms’ influence on culture and social norms, but cannot even offer effective, equal protection to individuals. In policy debates, the depoliticised and individualistic language of human rights can legitimise corporate activities and downplay important questions about the political economy of this privatised, highly-concentrated, advertiser-funded industry. The paper also considers interpretations of human rights as structural conditions or collective values, and argues that they cannot fully overcome the limitations discussed here. Given the entrenched role of fundamental rights in EU law, critics of social media cannot avoid relying on them. However, academics should also seek to develop more explicitly political critiques, based on alternative normative visions.

This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.