Regulating Power In The Digital Era: Comparative Perspectives of Digital Constitutionalism

The Brazilian president-elect has been under intense scrutiny for its ties with the spread of disinformation both during his election campaign in 2018 and during the COVID-19 pandemic. The use of disinformation in social media platforms to manipulate civil society has now become a focus of at least two criminal inquiries, as well as a judicial criminal inquiry started at the Brazilian Supreme Court. Simultaneously, the Brazilian Congress has spent the better part of a year discussing a bill that aims to prevent disinformation and regulate content moderation in social media platforms. This paper aims to analyze the normative and socio-politico response to disinformation from a perspective of societal digital constitutionalism, considering the increased prominence of the Brazilian Supreme Court in curbing the rise of authoritarian and anti-democratic discourse in the political landscape.

Shoshanna Zuboff defines surveillance capitalism as “an overthrow of the people‘s sovereignty“ (Zuboff, 2019). The massive collection of data contributes to creating a personal profile composed and analyzed with the help of AI to perform various and different actions. This problem is not just related to the minimization of the processing, but also to the predominantly “eternal use“ of these training data. Therefore, even if the data subjects under the GDPR can ask for their personal data to be deleted, however, this solution is not enough because of the inherent nature of AI. As a consequence, there is the risk that individuals are left without powers and remedies. This analysis aims to sustain the necessity to incorporate new constitutional “codes“ in the algorithms, to potentiate the enforcement of new essential digital rights, as what can be called “the right to a clean digital slate“: a new frontier of the right to be forgotten in the machine learning society.

Historically, also public actors have collected large amounts of citizen personal data. In the last period, the increasing use of Artificial Intelligence (AI) in public administration decision-making is forming new practices and challenging the previous balance of powers as well as the related public values. Particularly, when making decisions about citizens‘ fundamental rights, the unpredictable consequences of AI use can be significant. Indeed, depending on the purpose sought, big data and AI can perform mere support functions for administrative action, or they can be identified in a new “active“ role, replacing human activity, posing some threats to the application of the principles of efficiency, impartiality and transparency.Therefore, looking at the European level, this paper is going to analyze how automated decision-making processes in public decisions has reframed the balancing of powers between citizens and public actors.

In the context of online speech governance, a shift has taken place within EU digital policies towards an enhancement of the responsibilities of Internet service providers. After the second half of the 2010s, the Union has developed a range of “risk-based“ acts which aim to reduce the negative impact of the dissemination of illegal content across the Internet. These regulatory techniques, however, can lead to an excessive, and often discriminatory, abridgment of individuals‘ freedom of expression, especially in the light of the increasing use of AI for content moderation. Having the European institutions been mainly concerned about the goal of reducing the harms and dangers linked to the digital environment, current responses to the side-effects of the new regulatory trends have not been fully satisfying. The fight against harmful content should be coupled with efficient safeguards for vulnerable users to truly make the Internet a safe and trustworthy environment.