Post 2 in the Guest Blog Series  Preserving Public Values in The Automated State by Giovanni De Gregorio, PLMJ Chair in Law and Technology, Católica Global School of Law, Universidade Católica Portuguesa, Lisbon and Oreste Pollicino, Full Professor of Constitutional Law, Bocconi University, Milan. 

The spread of digital technologies has profoundly affected society, fundamentally altering how people live, work, and interact. As Floridi has highlighted, we are moving towards an “onlife” dimension, a space where the boundaries between online and offline worlds blur. This shift is characterised by integrating automated data collection, mining, and algorithmic analysis into our everyday lives. These developments have far-reaching implications for exercising individual freedoms in the digital age, often raising concerns about surveillance, censorship, and the potential misuse of personal information.

This shift has put to the fore the role of constitutional law and the theories of constitutionalism. Traditionally, constitutional theory frames powers as historically vested in public authorities, which by default hold the monopoly on violence under the social contract. It is no coincidence that constitutional law has been built around the functioning of public authorities. The goal of constitutions (and thus of constitutional law) is to allocate powers among institutions and make sure that proper limits are set on the same, with a view to preventing any abuse. The implementation of algorithms on a large scale has the potential to give rise to a further transmutation of the classic role of constitutionalism and constitutional theory, which does not reflect how power is relocated among different actors in the algorithmic society. 

This reallocation is not just a shift in who governs, but also in how governance occurs. The regulatory frameworks that once applied primarily to nation-states and their citizens must now adapt to a globalised, digital environment where non-state actors, such as multinational corporations, wield significant influence. It is within this context that the concept of “digital constitutionalism” has emerged as a critical area of study and debate. Digital constitutionalism refers to the articulation of limits on the exercise of power in a networked society, particularly in relation to the protection of fundamental rights. The lenses of digital constitutionalism thus help unearth the power dynamics emerging from the presence of digital technologies also in the delivery of public services. In so doing, it offers a critical framework and a normative stance for the exploration of themes dealt with by DigiPublicValues.

The idea of digital constitutionalism does not call for a complete overhaul of the principles of modern constitutionalism, but rather seeks to reinterpret and apply these principles in the context of an increasingly digital world. It is an attempt to rediscover the role of constitutionalism in the algorithmic society and to address the unique challenges posed by the digital environment. At its core, digital constitutionalism is concerned with ensuring that the exercise of power in the digital space is subject to appropriate checks and balances, and that individuals’ rights and freedoms are protected from both state and corporate overreach. It is not by chance that some works on digital constitutionalism have focused on the adoption of digital bill of rights.

At the heart of the rise of digital constitutionalism is the changing paradigm of governance of public authority. The lens of digital constitutionalism goes indeed beyond the implications for fundamental rights in the digital age. The development of algorithmic technologies has presented significant challenges to protecting individual fundamental rights, including freedom of expression, privacy, and data protection. These processes increasingly shape the protection of rights and freedoms, projecting them into a ubiquitous digital environment mediated by both public and private entities. These entities now express forms of authority that influence, and sometimes control, the exercise of fundamental rights and freedoms in unprecedented ways.

This technological shift underlines the changing governance framework where the power of public authority is increasingly less exclusive but shared with transnational corporations. Particularly, online platforms have emerged as powerful actors in governing the spaces where fundamental rights are exercised daily. Companies like Google, Facebook, and Amazon now have unprecedented influence over how information is shared, how opinions are formed, and how individuals interact with one another. The pandemic has not only amplified technological challenges like in the case of contact tracing, but it has also shown the role of private actors in acting as essential pieces allowing people to study, work and maintain social relationship. In many cases, they perform functions traditionally the responsibility of public authorities, such as regulating speech or resolving disputes, and this trend seems expanding as demonstrated by the choice of the European policy-makers to make online platforms increasingly responsible as in the case of content moderation.

Within this framework, what is at stake is the protection of fundamental rights and democratic values. Where private actors increasingly take on roles once reserved for governments, the traditional boundaries between public and private authority are being redefined. The threats to fundamental rights that were once primarily posed by state actors are now compounded by the actions of private companies, which often operate with little transparency or accountability. This creates a complex and often opaque environment in which individuals must navigate a web of rules and norms set by both governments and corporations, with significant implications for the protection of their rights and freedoms.

In Europe, the rise of digital constitutionalism has had a particularly significant impact on regulatory frameworks. European policymakers, also pushed by the approaches of European courts, have introduced a range of legal instruments designed to protect fundamental rights in the digital space, with a strong emphasis on privacy, data protection, and the regulation of algorithmic decision-making. The General Data Protection Regulation (GDPR), for example, represents one of the most comprehensive efforts to regulate the collection and use of personal data by both public and private entities. By establishing strict rules on data processing, consent, and individual rights, the GDPR has set a global standard for data protection in the digital age. Furthermore, the Union has also introduced regulations aimed at reducing the power exercised by online platforms. The Digital Services Act and the Digital Markets Act reflect the growing recognition that digital platforms, which play a central role in the exercise of fundamental rights such as freedom of expression, must be subject to appropriate legal oversight. 

Despite these advances, the path of digital constitutionalism is still in its early stages. The challenges posed by the algorithmic society are complex and multifaceted, and much work remains to be done to develop a comprehensive framework. Scholars, policymakers, and civil society organisations increasingly focus on how rights and freedoms are being hybridised, shaped by both public authorities and private governance, and how power is being relocated in the algorithmic society. Unlike traditional constitutionalism, which is rooted primarily in the legal frameworks of states, digital constitutionalism complements this view with global and societal constitutional challenges brought by digital technologies. It expands the debate beyond the threats posed by public actors also looking at private actors like tech companies and the role of society in the governance of digital age. 

In this sense, the normative approach of digital constitutionalism emphasises the goal of preserving democratic values. It aims to democratise the processes that shape the digital environment, advocating for a more dialectic model including civil society, governments, and the private sector in the formulation of policies that govern the digital realm. Therefore, digital constitutionalism offers a framework to understand the role of public values in the digital age and ensure that concepts such as the rule of law and accountability are not undermined by the exercise of different powers in the digital age.

Giovanni De Gregorio

Oreste Pollicino