Perspectives on Digital Constitutionalism

Digital citizenship is seen as the next step for the digital inclusion of millions of European citizens and further the development of digital twins, the real-time representation of companies and individuals. Digital citizenship refers on the one hand to the ability to use the Internet skilfully and critically - and on the other, to the ability to use digital technology to participate in society from a democratic and economic perspective. However, digital citizenship lacks a legal framework. Unlike traditional citizenship, digital citizenship is not defined as a form of membership of a nation-state. For example, Estonia grants digital citizenship to individuals who participate in its economy without conferring typical citizen rights. This paper defines digital citizenship, explores its possible legal framework within EU Law and the Digital Rights Declaration, and its importance for the conceptualization of digital twins.

Historically, Europe received U.S standards for online content moderation. In 'Importing America', this work argues that online moderation in Europe was influenced by American speech standards, interpreted in light of European digital constitutionalism. The E.U has replaced immunity with accountability, incentivizing an approximation between public and business actors. This paper inquires how the European model is being exported across the Atlantic. In 'Exporting Europe', this paper argues for the constitutional role of procedure in shaping content moderation. Appealing to the new concept of the Boomerang Effect, the paper argues that Europe is exporting a procedural view of content moderation back to the U.S. Instead of enforcing substantive standards, Europe is now pushing for the installment of due process considerations. By critically analyzing the proposal for a Digital Services Act, the paper suggests that the future of online moderation is procedural and content-neutral.

The growing control that online platforms exert on the moderation of public speech was intensely debated in recent times. Many accused online platforms of having state-like functions, of dictating what political and non-political information citizens read, what news citizens are exposed to or what opinions are and are not allowed. Indeed, online platforms are in a position of power regarding private ‘speech‘ and 'information' and its impact on the market, as they design and maintain the online review mechanisms that millions of consumers rely on every day before deciding to enter a contract. Based on the analysis of selected platforms‘ terms and conditions and policies on online reviews, and against a EU consumer law framework (including the Digital Services Act), this paper explores to what extent online platforms exert control over pre-contractual information conveyed via online reviews and, therefore, to what extent platforms impact the foundations of transactional decision-making.

Innovation in governance follows a leitmotif: emulation. In platform governance, emulating traditional institutions like a ‘Supreme Court‘ and notions like ‘constitutionalism‘, ‘rights‘, or the ‘rule of law‘ became a central discursive fixture. Taking a socio-legal and comparative approach, this paper highlights and criticizes the role of emulation in current practical developments and scholarly discourses known as ‘digital constitutionalism‘. By examining the DSA and Meta‘s Oversight Board through the prism of emulation, the contribution points to digital constitutionalism‘s emulation paradox: Can and should we capitalize on emulation as a method to learn from established and legitimate practices how to improve platform governance? And how do we prevent the misuse of emulation as mere piggybanking on the legitimizing guise of traditional concepts, procedures, and institutions?