Framing the Digital Services Act within transatlantic digital constitutionalism

The launch of the Digital Services Act in December 2020 has constituted a milestone in European digital policy, which is struggling to react to the consolidation of platform governance. The DSA aims to provide a new supranational and horizontal regime of transparency and accountability to mitigate the challenges raised by the power of online platforms in content moderation. It is one of several pieces of a broader European strategy reviewing the objectives of the Digital Single Market, in particular consisting of the Communication “Shaping Europe’s digital future”, the Communication “A European strategy for data” and the White Paper on Artificial Intelligence. The proposalfor a regulation on artificial intelligence technologies is another example of this European reactive framework. More broadly, the DSA can be considered a step in the path of European digital constitutionalism.

The Rise of European Digital Constitutionalism

This phase of reaction has not always characterised European digital policies. In the last twenty years, the policy of the European Union in the field of digital technologies has shifted from a liberal perspective to a constitutional strategy aimed to protect fundamental rights and democratic values. This change of heart has not occurred by chance but has been primarily driven by the transformation of the digital environment. Since the end of the last century, new private actors have been providing opportunities for the growth of the internal market while providing more possibility to exercise individual fundamental rights and democratic values. Still, the increasing relevance of the private sector in the digital environment has led to a situation where digital spaces are mostly subject to the governance of private actors designing standards and procedures competing with the protection ensured by traditional constitutional rights and safeguards. In a sense, the connection between law and territory in the digital environment has been complemented by the relationship between norms and spaces.

The case of content moderation is a paradigmatic example of this process characterised by the predominance of governance by platforms. Content moderation contributes to providing digital spaces which are free from objectionable content like disinformation and hate speech. Online platforms can decide how to show and organise online content according to predictive analysis based on the processing of users’ data. However, by organising and removing content, online platforms privately shape the boundaries of freedom of expression on a global scale, thus proposing a private standard of protection competing with constitutional safeguards. The organisation or the removal of online content are enforced directly by social media companies relying on a mix of algorithmic technologies and human moderators. This private framework of governance also leads platforms to balance clashing individual rights to decide which right should prevail in each specific case. Therefore, although, at first glance, social media foster constitutional values by empowering users to share their opinion and ideas cross-border in safe digital spaces, the way how information is organised online frustrates democratic values due to the high degree of opacity and inconsistency of content moderation.

Within this framework, the adoption of the DSA will play a critical role in mitigating platform powers by increasing transparency and accountability in content moderation. This framework shows how the Commission aims to provide a new legal framework for digital services that is capable of strengthening the Digital Single Market while protecting the rights and values ​​of the Union which are increasingly challenged by the governance of online platforms in the information society. According to Commissioner Vestager, ‘[T]here’s no doubt, in other words, that platforms—and the algorithms they use—can have an enormous impact on the way we see the world around us. And that’s a serious challenge for our democracy. [. . .] So we can’t just leave decisions which affect the future of our democracy to be made in the secrecy of a few corporate boardrooms’. This statement should not surprise but rather underline one of the essential peculiarities of European constitutionalism whose roots based on human dignity do not tolerate the exercise of private power threatening fundamental rights and democratic values.

Constitutional Approaches across the Atlantic

Nonetheless, the constitutional approaches to the rise of digital private powers have increasingly polarised across the Atlantic. From the first period of convergence based on neo-liberal positions at the end of the last century, the US and the EU have taken different paths. On the eastern side of the Atlantic, the EU has slowly abandoned its economic imprinting. While, in the last twenty years, it has primarily focused on promoting the growth of the internal market, this approach has been complemented by a constitutional democratic strategy.

While the EU framework is at the forefront of a new constitutional phase, addressing the challenges raised by the exercise of private powers online, the western side of the Atlantic has not shown the same concerns. In fact, the US followed an opposite path. US policy is still anchored to a digital liberal approach which considers the First Amendment as the primary beacon. Still, for instance, Section 230 of the Communications Decency Actimmunises online intermediaries, including modern online platforms, from liability for moderating online content. Trump’s executive order on social media has shown the constitutional paradoxof the US policy on social media. Moving to the Supreme Court, even in this case, there has been a restrictive approach towards any public attempt to regulate the digital environment, or horizontal extension of constitutional rights These examples show how the US is following an omissive approach driven by the rigidity of the First Amendment.

The primary role of the First Amendment in US constitutionalism seems not suggesting a paradigmatic turning point in the short term, despite the attack on the US Capitol in January 2021 and the revelations by tech giant whistle-blowers. In this sense, the approach of the US to the private governance of online speech can be considered stuck within a liberal rhetoric.

The Different Faces of Digital Constitutionalism

The policy responses to platform powers across the Atlantic provide an example of different constitutional sensitivities to the issue of private powers. The DSA shows the resilience of the European constitutional model which does not tolerate abuse of freedoms (or power). This new phase should not be seen merely as a turn towards regulatory intervention or an imperialist extension of European constitutional values. It is more a reaction of European digital constitutionalism to the challenges for fundamental rights and democratic values in the algorithmic society. Therefore, the evolution of European digital constitutionalism would oppose neo liberal or techno-determinist solutions and contribute to promoting the European model as a sustainable constitutional environment in the global context.

In sum, the DSA provides a paradigmatic example of European digital constitutionalism. On the western side of the Atlantic, despite the recent events and the promises of the Biden administration, the US is still following an omissive approach which is firmly connected to the idea that freedom of expression is the beacon of the digital age, thus, expressing another form of digital constitutionalism. This diverging approach across the Atlantic shows how constitutional democracies deal with the same transnational challenges in different ways, thus, also underlining why a turning point in the US approach to platform governance could be constitutionally far.