I. Introduction
On 10 November 2021, the UK Supreme Court (UKSC) delivered a landmark judgment in the case Lloyd v Google. Footnote 1 Mr Lloyd, former executive director of a consumer watchdog, had sued Google for damages on his behalf and that of other residents of England and Wales under sections 4(4) and 13 of the Data Protection Act 1998 (DPA98). Between 9 August 2011 and 15 February 2012, Google had allegedly treated the data of over four million users for commercial purposes without their knowledge or consent. In order to circumvent the unavailability of a ‘general’ class action in English law, the lawsuit was based on a representative procedure. As Google is a US-based corporation, Mr Lloyd had to apply for permission to serve the claim outside the jurisdiction, proving that the claim had a reasonable prospect of success.Footnote 2 In response, Google argued that the allegations did not provide a basis for claiming compensation and, in any event, the court should not permit the lawsuit to continue as a representative action.
After contrasting decisions by first and second instance courts, the UKSC unanimously ruled in Google’s favour. According to the Court, the term ‘damage’ in section 13 refers to material damage or mental distress distinct from, and caused by, unlawful processing of personal data. Therefore, Mr Lloyd would have to demonstrate that Google made unlawful use of personal data relating to each individual and that the individual suffered some damage as a result. Compensation cannot be awarded for mere ‘loss of control’ of personal data. Moreover, the Court found that the claim did not concern the ‘same interest’ required under the chosen representative procedure. Particular cases will require individualized assessments of what happened to class members, who would not be participating in the action. Damages could be claimed in a representative action only if they can be calculated on a basis that is common to all persons represented. If this is not the case, only liability issues could be decided in a representative action, with the individuals in question bringing separate claims for compensation. Unsurprisingly, the decision disappointed privacy activists. However, it is fair to say that the UKSC reasserted relatively unquestioned tenets of liberal constitutionalism.Footnote 3 Activists and policy-makers may criticize the holding, but the failure to question some assumptions in more depth leaves them somehow defenceless.
The Lloyd decision is significant in itself, especially for data protection law. However, besides its specificities, it is here recalled for its explanatory value, as a telling example of a contradiction within digital constitutionalism, a strand of scholarship dealing with the relationship between constitutional law and the sociolegal challenges posed by the digital revolution.Footnote 4
Indeed, the literature using an explicit constitutionalist language has hardly explored digital constitutionalism’s critical potential. When it comes to operationalization, digital constitutionalism generally turns around few – crucial, but still somehow narrow – issues: free speech, privacy, safeguard of electoral processes, consumer protection, market regulation.Footnote 5 Most importantly, digital constitutionalism typically builds on (Western) liberal constitutionalism as an unquestioned ‘good’ matrix, whose principles need to somehow be injected into the digital sphere.Footnote 6 In other words, such scholarship hardly assesses the traditional assumptions of constitutional theory critically.Footnote 7 Among them, one might include the relatively rigid state/society and public/private divides; the focus on political power as the main focus of constitutional normativity; the rigid divide between national and international/global legal systems; state-centred legal monism; the static conception of law, detached from the time and means of its application/dissemination; the conception of legal subjects as rational, self-authorized actors, ‘free’ from concrete societal constraints and the effects of information overload/asymmetries; and an over-reliance on courts for the effective protection of rights.
In an age where the pervasive impact of digital technologies on ‘everyday life’Footnote 8 is becoming increasingly apparent, this relative lack of self-reflection results in a tension between analytical starting points and policy proposals. Digital constitutionalism’s political rationality (the possibility to think the given otherwise) is hardly accompanied by a critical phenomenology (the forcing to appear).Footnote 9 I suggest that such tension is problematic in relation to digital constitutionalism’s transformative possibilities. Against this backdrop, this article has two main goals; first, linking different discourses within digital constitutionalism, highlighting its critical potential; and second, advancing some proposals based on such reflection. In this sense, the article does not outline a distinct strand of digital constitutionalism, but rather a specific perspective, a reconstruction in the light of elements sparsely present in it.
The goals of the article are reflected in its title, which plays on the ambivalence of the connective of: digital constitutionalism is both the object and the means of critique. As an object, the article assesses digital constitutionalism in the light of its inner tension. As a means, the article uses digital constitutionalism to assess the intrinsic limits of liberal constitutional theory in one of the most relevant societal spheres of world society. Understanding digital constitutionalism as a critical theory of constitutionalismFootnote 10 may help cope with its inner tension, thus strengthening its normative thrust and giving more coherence to research and policy agendas. At the same time, the (unavoidably partial) attempt to keep many legal discourses on digital technologies together contributes to the de-fragmentation of digital constitutionalism. In that sense, this article contributes to both the deconstruction and the reconstruction of (digital) constitutionalism.
In order to highlight digital constitutionalism’s critical potential, the article resorts to societal constitutionalism, one of the theoretical frameworks used in the global constitutionalism literature.Footnote 11 References to such a framework are frequent, especially regarding the emergence of new forms of normativity within the regulatory spaces opened by digital technologies.Footnote 12 Even without subscribing to societal constitutionalism, authors often refer to it in matters of transnational private regulation, (global) legal pluralism and dispute-settlement.Footnote 13 However, digital constitutionalism authors use societal constitutionalism primarily to account for ‘constitutional’ norms within the regulatory spaces opened by digital technologies. Such use leaves the impression that societal constitutionalism only legitimizes new forms of governmentality. In contrast, this article deploys societal constitutionalism to bring the critical/transformative potential of digital constitutionalism out. By this means, it also pursues a third goal: bringing digital constitutionalism close(r) to the broader galaxy of global constitutionalism.Footnote 14
Part II provides an overview of societal constitutionalism, highlighting its elements of critique, while Part III reconciles societal constitutionalism and digital constitutionalism, focusing on the latter’s definition and three functionally differentiated systems, namely politics, economy and law. For each of them, it highlights the analytical and normative gains for digital constitutionalism of a societal constitutionalism perspective, pointing to some proposals that require further development. Part IV concludes the article.
II. Societal constitutionalism as a critical theory
The state/society divide
Original elaborations of societal constitutionalism focused on the difficulty of liberal constitutional theory in detecting social authoritarianism in conceptual terms, even when state structures remain formally liberal-democratic.Footnote 15 Such drifts, as societal constitutionalism authors note, are structural rather than accidental tendencies of modernity, rooted in fragmented meaning, instrumental calculation, bureaucratic organization and charismatic leadership. Confronted with such processes, liberal constitutionalism’s concepts may at best address selected sets of purposefully arbitrary exercises of collective power by private actors, but many mechanisms of social control escape them, especially inadvertently arbitrary exercises of collective power. One might think of the organizational design of pharmaceutical research and industry, which opens up the possibility of data manipulation, with harmful effects on people’s health and science generally. Similarly, the academia/science complex, based on cooptation, reputation and quantification of teaching and research, triggers publish-or-perish, ghost-writing, citation cartels, manipulation of data and mental health distress, disproportionately affecting subaltern groups.Footnote 16 The design of organizations dealing with sexual assault often contributes to the reproduction of power structures, victim (self-)marginalization and gender (micro-)violence.Footnote 17
The examples could continue. The point is that counteractions to authoritarian drifts and conditions for non-authoritarian social change cannot be based only on separation of powers, due process, fundamental rights or judicial review in their state-centered perspective. Negative externalities generated by different societal processes should also be addressed through ecologically oriented – rather than strictly rational/instrumental – reciprocal limitations among collective actors and social systems, centred around norm-producing institutions within society.
Societal constitutionalism also critiques liberal constitutionalism’s relatively rigid state/society divide. In this sense, it does not overcome, but rather reframes, the public/private divide, individuating relationships of authority/domination within relatively autonomous spheres of civil society and focusing on both purposeful and inadvertent forms of social control in the relationships with ‘private’ governments.
Early societal constitutionalism focused on formal organizations – bureaucratic apparatuses, corporations, parties, churches. Notably, building on Luhmann’s theory of functional differentiation and an autopoietic conception of law, Gunther Teubner has in addition incorporated issues related to the autonomization/transnationalization of social processes triggered by globalization.Footnote 18 The following sections highlight the points most relevant to our purposes.
Functional systems and communication media
Societal constitutionalism focuses on politics, economy, press, science and so on as functionally differentiated systems of modern society and on their distinct communication media (power, money, information, truth, etc.).Footnote 19 By these means, it expands the target of constitutionalism. Constitutional problems do not derive just from the power imperative of politics or the monetization imperative of economy, but also from the knowledge imperative of science, the innovation imperative of technology, the news/information cycle imperative of the press and the juridification imperative of law. Threats to human and ecological integrity thus derive also from depersonalized processes linked to the reproduction/accumulation of power, money, information, knowledge and juridical authority.Footnote 20 Effective constitutionalization, then, takes place only if and to the extent that norms emerging within and between social systems perform both constitutive and limitative functions towards such communication media.Footnote 21
The internal/external divide
Societal constitutionalism also focuses on the transnationalization/autonomization of systems, stressing how constitutional questions related to organizations – states, corporations, international organizations – and regimes, such as global politics, international investment law and global science, increasingly emerge and need to be addressed beyond states’ territorial borders. In other words, societal constitutionalism focuses on the fact that globalization changed existing questions by moving them at the level of the world society, whereas states and international politics – while remaining centralFootnote 22 – determine social evolution less than before.Footnote 23 At the same time, to the extent that globalization consists in the competitive alignment of national – especially welfare – systems, state-centred constitutionalism simultaneously enables the global expansion of capitalist exploitation and obstructs the very possibility of thinking and acting in terms of transnational counteractions, and particularly of transnational solidarity and democracy.Footnote 24
Constitutionalism beyond the state
Like other strands of global constitutionalism,Footnote 25 societal constitutionalism embraces legal and constitutional pluralism. It argues that, with globalization, legal systems go through a fragmentation whereby different, interconnected systems increasingly develop their own norms. Such ‘fragments’ do not exist in a vacuum, but rather interact with each other and with the environment according to different legal/illegal distinctions,Footnote 26 ultimately based on distinct principles of legitimacy. For example, the global investment regime is sustained by both formal and informal normative instruments as well as by national and international instruments.Footnote 27 However, its concrete operation is determined by standards of legitimacy oriented to the protection of investment capital – that is, to the profit accumulation imperative.Footnote 28
In this constellation, effective constitutionalization may occur only if the norms emerging within and between such functional systems constitute and constrain the communication processes that, especially following globalization, have been partially ‘freed’ from the constraints of state-centred politics. Societal constitutionalism argues that at the level of world society, with no authoritative third instance, such a result can only be reached if sufficient external pressures are exercised – for example, political demands over economic processes and the other way around – and their internal structures are open to such external demands.
To sum up, societal constitutionalism questions the identification of law with state law and problematizes the link between state and constitution. By these means, it opens to the possibility of constitutionalization processes not exclusively centred around states. From a normative perspective, such a pluralist view means building a theory of collisions suited to the emergence of normative systems of qualitatively different nature.Footnote 29
Certainly, states retain a central role in generating external pressures and designing the internal normative infrastructures of other systems. Moreover, alternative arenas of contestation, discussion, and decision-making complement rather than replace state politics. At the normative level, this view calls for reconciliation and productive use of impulses coming from states and their constitutions; and for the strengthening of the learning capacities of other systems. In this respect, and importantly, societal constitutionalism does not necessarily advocate for “less government” and/or private (self-)regulation. Rather, it calls for strategies taking into consideration the existence of non-state normativities, productively combining them in regulatory mixes which ultimately strategize the specific reflexivity of each social field.
Law as an autopoietic system
Societal constitutionalism is based on an autopoietic conception of lawFootnote 30 – that is, a social theory of law incorporating the fundamental paradoxes of modern law: self-validation and circularity. Under such conception, law is not a set of static norms, removed from social time and context. Instead, it is a social system itself – that is, a system of meaning, of socially constructed communications, based on its own code: the legal/illegal distinction.Footnote 31 Its fundamental function is the generalization/stabilization of normative expectations.
Under the autopoietic conception, both the emergence and the reproduction of legal systems are constrained by the need to perform their function and preserve their operational autonomy. In other words, law can generalize/stabilize normative expectations emerging from its social environment – for example, moral, religious and economic norms – only if it does not immediately identify with them. Law can ‘read’ and solve conflicts emerging from society only through the legal/illegal distinction, continuously reframed by its own internal operations: legal procedures, acts, norms, doctrinal concepts. In this sense, law generates its own validity through the internal translation/misunderstanding of impulses coming from its environment. Re-elaborated through ‘productive misreadings’,Footnote 32 such impulses are given legal meaning through chains of communication based on the legal/illegal distinction. Legal systems emerge, ‘live’, and perform their societal functions by permanently re-regulating themselves, that is, through creative ‘errors’, paradoxes, doctrinal inventions provoked but not mechanically determined by such impulses. Legal systems re-generate their meaning within the possibilities allowed by existing patterns but in unpredictable, contingent, ‘blind’ ways. Modern law, then, is not merely ‘responsive’ but rather ‘reflexive’ to social impulses.Footnote 33
This also means that to effectively perform their functions within an increasingly fragmented society, legal systems have to preserve some degree of flexibility, indeterminacy and unpredictability, while at the same time persisting in the face of disappointment about social expectations. This openness/indeterminacy is crucial to absorb cognitive expectations and increase law’s capacity to learn from the environment. Put differently, the possibility of having (micro-)variations of meaning is essential to the reproduction of legal systems and the preservation of their societal function.
Time and means of dissemination of law
Based on the idea of law as a system of social communications, societal constitutionalism advances a different approach to law’s relationship with its means of dissemination and time. As the production, interpretation and application of law also draw on information not conserved in legal texts (in the narrow sense),Footnote 34 legal acts are influenced by their means – oral, printed, digital – of dissemination and the point in time when they are communicated. At the same time, each legal act (legislation, judicial decisions, administrative acts, contracts) is a communicative event based on the legal/illegal code, potentially rearranging the meaning of past communications and changing future patterns of law’s evolution.
But time does not always flow at the same speed. The different social ‘speeds’ of time and the related perceived need to produce legal meaning matching social, technological and environmental change have an impact on law’s evolution, notably the sources of legal validity and the types of acts that take centre stage in law-making.Footnote 35 In an age of growing functional differentiation and accelerated technological and environmental change, legal systems are increasingly called on by their environment to produce increasingly new legal meaning and to ‘learn’ from their own operation, even without explicit political consensus.Footnote 36 In this sense, the crisis of ‘general and abstract’ models of law-making – which parallels the relative decline of treaty-based law-making in international law – is coherent with the rise of judicial and administrative bodies as the ‘real’ places of law’s production, as well as of private and hybrid forms of regulation. Such dynamics are not accidental features; rather, they are deeply ingrained in the increasingly fragmented sociolegal structures of modernity.Footnote 37
Rights and democracy
Societal constitutionalism puts communication media (power, money, normativity, truth) at the centre of constitutional theory. As such, they participate in the subjectification of individuals and collective actors – in their ‘interpellation’.Footnote 38 Based on this assumption, societal constitutionalism advances a critique of the liberal theory of rights, centred on individuals as rational, self-authorized, pre-social actors, detached from societal constraints and excluding social systems as right-holders to be protected on their own. Indeed, social control/manipulation may well emerge even when individuals can express a will that has been ‘freed’ from the constraints of political power or economic need.Footnote 39 At the same time, societal constitutionalism highlights the need to preserve different social systems from reciprocal encroachments and colonization.Footnote 40 As the COVID-19 pandemic has shown, the scientification of politics and the politicization of science are equally dangerous sides of the same coin. Put differently, societal constitutionalism highlights the need to mobilize the trans-subjective potential of rights.Footnote 41 In normative terms, this means using both existing and new legal instruments to translate rights-based claims into political issues and to thematize/problematize how to address collective societal harms. This is particularly relevant when such harms derive from depersonified processes and so-called ‘global injustice’,Footnote 42 as is the case with mass data collection and treatment.Footnote 43
What about democracy? Societal constitutionalism rejects the view that procedures based on elections, representation and organized opposition within state institutions are the sole possible model of democratic legitimation.Footnote 44 In particular, it rejects the impossibility of democracy in global/transnational settings and contests approaches aiming to compensate the lack of democratic legitimacy of non-state systems through state-centred models (e.g. chains of delegation/authorization starting from national parliaments).
In contrast, societal constitutionalism advances a theory of democracy based on polities not necessarily delimited by personal or territorial belongingFootnote 45 or an assigned status of citizenship, nor identified with an international community or a ‘global civil society’.Footnote 46 They are rather individuated by how affected by a given system certain subjects or groups are (or perceive themselves to be).
Within these communities, democratic legitimation does not necessarily take place according to traditional representative schemes or the majority principle. Rather, the principle of representation is generalized through the institutionalization of self-contestation, to be re-specified according to the specific rationality and normativity of each system.Footnote 47 Under such a view, authentic democratic processes emerge if and to the extent that subjects affected by systems’ operations stably practise substantive and even direct participation and contestation in their normative production. Various decision-making fora should mirror a plurality of democratic legitimation schemes, also going through transnational organizations, grassroots movements, trade unions and NGOs. The ‘political’ (le politique)Footnote 48 is not limited to ‘politics’ (la politique)Footnote 49 and increasingly emerges in private or hybrid arenas.Footnote 50 Societal constitutionalism’s pluralism individuates processes of democratization allowing different kinds of actors to participate in legal production taking place in distinct spheres at the global level. In this way, against all critical claims that it is the doom of democracy, globalization may offer an opportunity to exploit the democratic potential of social processes beyond the institutions of state politics. In sum, societal constitutionalism looks at how to institutionalize the possibility of bottom-up social variation and contestation.
III. Reconciling digital and societal constitutionalism
This part of the chapter focuses on digital constitutionalism’s definition and three systems – politics, economy and law – whose communication media – power, money and juridical authority – are central to modern society. First, it aims to frame existing analyses as parts of a broader theory with a critical potential. The premise is that such analyses do not explicitly focus on the fact that digital technologies create new possibilities for politics, economy and law to control and manipulate individuals through their own communication mediaFootnote 51 and allow for new forms of colonizationFootnote 52 among systems (for example, digital economy towards politics or science, or digital press towards politics). Second, it aims to operationalize such insights. In particular, it highlights the analytical and normative gains that digital constitutionalism may achieve from its reconciliation with societal constitutionalism, pointing towards some proposals.
Definition
In one of its first explicit formulations, Suzor describes digital constitutionalism as an attempt ‘that seeks to articulate and realize appropriate standards of legitimacy for governance in the digital age’.Footnote 53 Subsequently, Redeker, Gill and Gasser have defined digital constitutionalism as a ‘common term to connect a constellation of initiatives that have sought to articulate a set of political rights, governance norms, and limitations on the exercise of power on the internet’.Footnote 54 Relying on societal constitutionalism, they frame digital constitutionalism as the ‘process of constitutional rule-making that arises from social groups like civil society or transnational business corporations’ and included the limitation of both public and private power within the subject matter of digital constitutionalism. However, they include within the scope of digital constitutionalism only documents, charters and declarations that explicitly aim to establish different types of an ‘Internet Bill of Rights’ and focus on political questions and communities. Therefore, they deny the ‘constitutional quality’ of other types of norms, especially those produced by IOs and private enterprises, such as the norms developed by Meta.Footnote 55 Those documents overwhelmingly focus on crucial but relatively narrow issues: freedom of expression, privacy, right of access to the internet. Therefore, their definition is still anchored to a conception of constitutional norms as limitations to (political) power and largely overlooks subtler dynamics of manipulation and colonization deriving from the impact of digitalization.
Celeste advances yet another formulation – again explicitly based on societal constitutionalism. He defines digital constitutionalism as ‘the ideology which aims to establish and to ensure the existence of a normative framework for the protection of fundamental rights and the balancing of powers in the digital environment’. Such ideology should permeate, guide and inform the constitutionalization of the digital environment, understood as the process that ‘aims to produce a series of normative counteractions to address the alterations of the constitutional ecosystem generated by the advent of digital technology’. The advantage of framing digital constitutionalism as a theoretical concept lies ‘in the possibility to distinguish it from its implementation, its translation into reality’. Further, Celeste’s notion of constitutionalization as a process that aims to produce normative counteractions captures well the tasks to which digital constitutionalism is called.
However, his conception of ideology is somehow still sanitized: a ‘structured set of values and ideals’.Footnote 56 Expanding on Althusser’s workFootnote 57 and its reading by Johns,Footnote 58 digital constitutionalism as an ideology can rather be defined as the constitutional discourse that investigates and contributes to shaping the socially constructed relationships of individuals to their actual conditions of existence, directly or indirectly mediated by digital technologies. This definition focuses on the dynamics of hailing/interpellation triggered by digital technologies – that is, dynamics by which different socio-political apparatuses and processes, be they work, sex, gender, ethnicity, citizenship or other, constitute individuals and collective actors as social subjects through digital technologies. This conceptually thicker notion of digital constitutionalism brings about three analytical gains.
First, it highlights that digital constitutionalism deals – should deal – primarily with how digital technologies affect and shape the social existence of individuals, collective actors and social systems.Footnote 59 In this sense, such notion aims to counter the risk that the constitutionalist language might be coopted to conceal or otherwise legitimize the powers and social processes that digital constitutionalism is supposed to address.Footnote 60
Second, digital technologies and globalization have not created, but rather made more visible and urgent, questions left unaddressed by state-centred liberal constitutionalism. In this regard, the insistence on counteractions to the alteration of a previously existing equilibrium gives the impression that digital constitutionalism deals with totally new constitutional questions, which emerged only with digital technologies. Undoubtedly, digital constitutionalism deals with questions that have assumed different quality and significance with digital technologies. However, at their core, such questions were already present in the legal structures of (Western) modernity. ‘Analogue’ constitutionalism was not characterized by equilibrium, but rather hid its absence. The task of digital constitutionalism is not to regain some paradise lost, but rather to open the eyes before hell.Footnote 61 This conceptual move helps ‘see’ the subject matter of digital constitutionalism – not simply the regulation of digital technologies and their disruptive impact, but rather of already existing constitutional questions reshaped by digitality.
Third, this definition offers a point of convergence for different and somehow still sparse strands of scholarship addressing the impact of digital technologies, especially those that do not speak – at least, not explicitly – a constitutional language. This would concern, among others, ‘critical data studies’, ‘algorithmic regulation’ and ‘law and political economy’. Critical data studies explore data as situated in complex ‘data assemblages’ of action referring to the vast systems, comprising not just data infrastructures, but also the ‘technological, political, social and economic apparatuses that frame their nature, operation and work’, including processes of data collection and categorization to the subsequent cleaning, storing, processing, dissemination and application of data.Footnote 62 Algorithmic regulation is a concept ‘entailing sustained, intentional attempts to employ algorithmic decision-making in order to influence behaviour or manage risk’.Footnote 63 Law and political economy is a more general strand that has emerged in recent years, featuring particular attention to the material relationships triggered or affected by digitality and its legal infrastructures.Footnote 64 Coalescing such strands around a broad – but still conceptually thick – definition of digital constitutionalism, while still keeping their specificities, might contribute to a richer and possibly more nuanced debate, generative of more effective solutions. At the same time, it would contribute to establishing a stronger dialogue with existing discourses of global constitutionalism.Footnote 65 In this sense, such a move frames digital constitutionalism in a more comprehensive and possibly ambitious way – that is, as the constitutional theory of the digital age.
Politics
Power is a traditional focus of digital constitutionalism. There is a vast body of literature on the impact of digital technologies on politics and democracy, with contrasting views on whether they open to positive or negative developments.Footnote 66 In this context, societal constitutionalism conceives power not as coercion or merely as self-interested influence on social actors’ behaviour, but as the specific communication mediumFootnote 67 of the political system. Societal constitutionalism focuses not only on new possibilities of the arbitrary exercise of power but also on the impact of digital technologies on the conditions of reproduction of power itself, conceived in this specific way. In other words, societal constitutionalism asks digital constitutionalism how it can preserve the capacity of politics to produce socially legitimized, collectively binding decisions under conditions of extreme social fragmentation, where consensus based on the traditional procedures of (representative) democracy is more difficult to reach.Footnote 68
Such an issue goes beyond the preservation of a ‘free marketplace of ideas’ and a functioning public sphere.Footnote 69 It requires a broader reflection on the conditions through which (presumptions of) consensus to the purposes of collective decision-making may emerge.Footnote 70 The digital revolution has debunked, or at least raised questions about, yet another myth of liberal political theory: the direct connection between the social availability of ‘correct’ information and the emergence of authentic socio-political consensus via well-functioning state institutions. Indeed, thanks also to digital technologies, new and old (collective) actors can voice dissent, generate conflict, ‘force’ debates and move them in different directions, in ways different from those emerged in state-centred constitutional modernity.Footnote 71 In this sense, as the constitutional theory of the digital age, digital constitutionalism is called to incorporate into its reflections a legal-institutional analysis of the impact of digital technologies on both national and transnational collective actors and their respective strategies, including political parties, movements, religious confessions and academic institutions.Footnote 72
At the same time, digital constitutionalism is called to address the impact of digital technologies on the dangerous capacity of politics to control individuals and colonize other social fields. This issue does not concern only the rise – in different forms and degrees – of state surveillance and profilingFootnote 73 in both liberal-democratic and authoritarian countries.Footnote 74 There are already rich reflections on the effects of predictive policing,Footnote 75 automated decision-makingFootnote 76 and ‘nudging’.Footnote 77 As the COVID-19 pandemic has shown, digital technologies and algorithms open the way to new and subtler forms of constraint, political control and manipulation of both individuals and autonomous social fields.Footnote 78 However, a societal constitutionalism-oriented approach to digital constitutionalism calls for a more comprehensive approach to the bidirectional relationship between digital technologies and the (self-)reproduction of power. More generally, the digital revolution ‘asks’ constitutional theory to rethink the relationship between state and society: neither a stark separation nor a complete indistinction, but rather an intensification of interdependence and mutual relationships.
In normative terms, such an approach highlights the need to strengthen the cognitive openness of state (administrative) apparatuses and procedures;Footnote 79 and to establish stricter prohibitions on the use of AI by both public and private actors.Footnote 80 Such openness should be directed to absorb and re-elaborate in their concrete operation programmes not strictly related to self-referential decision-making capacities.Footnote 81 But besides state structures and public apparatuses, establishing and reinforcing mechanisms of cognitive openness to political impulses is even more urgent within private or hybrid organizations such as Meta or ICANN.Footnote 82 In that sense, Meta’s establishment of the Oversight Board to adjudicate content moderation issues on its platforms could be seen as an opportunity to open the inner normative system of a profit-driven entity to social demands.Footnote 83
Interestingly, democratization has always been a weak spot of both digital constitutionalismFootnote 84 and global constitutionalism.Footnote 85 In this regard, failures to replicate state-centred models of democratic legitimation show how unsuited to the digital sphere(s) they are.Footnote 86 Unsurprisingly, the digital constitutionalism literature has focused mostly on procedural aspects such as fairness, participation, transparency, accountability and judicial review,Footnote 87 to the point where it has been accused of ‘procedural fetishism’.Footnote 88 These proposals are certainly valuable and, under the pressure of the colére publique triggered by recurring scandals, have been to some extent implemented by private ‘governors’.Footnote 89 However, in order to avoid risks of cooption, the democratization of the digital sphere must also involve the dimensions of struggle, conflict and contestation, especially in fields where the risks of abuses are higher, such as law enforcement, border control, migration and asylum.Footnote 90 Here again, societal constitutionalism – in line with recent strands of global constitutionalismFootnote 91 – highlights the need to preserve spaces for conflict and contestation also within the social spheres variably controlled by digital ‘governors’. In this regard, proposals to establish a right to contest AI – especially in its collective dimension – are promising.Footnote 92
But who will contest? Which polities will raise conflict if the digital spaces is multijurisdictional and multilayered? This question touches upon another crucial point of the relationship between digital constitutionalism and politics: the territorial one. Indeed, both the state/society divide and the internal/external divideFootnote 93 need to be reframed. Here, a closer connection with societal constitutionalism helps understand that digital constitutionalism is either a global constitutionalism – ‘thinking’ in multijurisdictional and multilevel terms – or it is not.Footnote 94 Digital constitutionalism contributes to the internationalization/globalization of constitutional discourses, understood also as a trajectory where the state territory is less and less the symbolic space for power relationships and consensus-building. Put in a different way, digital constitutionalism contributes to the conceptual disentanglement of issues concerning sovereignty from those concerning legality and constitutionality.
Digital constitutionalism has long dealt with issues concerning jurisdictional conflicts – especially over hate speech and data protection – and the multilayered/hybrid governance of the internet.Footnote 95 However, a focus on the impact of the reproduction of power and legitimated collective decision-making helps ‘see’ how digitality often sustains trends toward supra- and transnational engagement and a centre/periphery rather than internal/external mindset. If states aim at effectively preserving their capacity to regulate key societal fields – crucial to the building of consensus – they are pushed to coordinate with other actors or to extend the effects of their domestic law beyond their territory.Footnote 96 Such a focus might also help de-parochialize some digital constitutionalism discourses that frame issues of digitality as if they fell only within the scope of national constitutions.
More generally, in locating arenas for democratization and contestation, societal constitutionalism focuses on communities of users, consumer organizations, internet activists and other civil society segments, highlighting their essential role in triggering variations in social communication and in the successful operation of reflexive processes out of which normative expectations about network infrastructure emerge.Footnote 97
In this same context, a societal constitutionalism-oriented approach links digital constitutionalism and international law discourses, giving a coherent account of the (re-)emergence of states with phenomena such as the splinternet,Footnote 98 technological and regulatory competition and an enforcement frenzy made of national laws on content moderation, antitrust and data protection.Footnote 99 However, rather than a return to the self-contained units of a Westphalian global order, such a re-emergence can be read as the rise of macro-geopolitical units, which increasingly (try to) act ‘imperially’Footnote 100 – that is, in terms of centre/periphery.Footnote 101 New processes of fragmentation, polarization and hybridization, with their related normative conflicts, are emerging along blurred and ever-shiftingFootnote 102 spheres of influence.Footnote 103 In these processes, the relative power of states, the distinct strategies pursued by key private actors gravitating in their orbitsFootnote 104 and technological/infrastructural asymmetries play a central role.Footnote 105 Moreover, in their emergence and development, such processes show remarkably functional features, taking different forms and degrees of intensity depending on how close to the reproduction of political power and consensus-building distinct issues are.Footnote 106 Put differently, the faultlines of fragmentation, the various forms of ‘splinternet’ and the different roles of private actors emerging with the ‘return’ of state politics into the digital sphere vary greatly, depending on the specific issue. This functional reading is also coherent with the fact that conditions and consequences of the competition among global players such as the United States, China and the European Union change dramatically depending on whether such competition concerns the structural layer (e.g., control over data infrastructures), the logical layer (e.g., control over Internet protocols) or the social layer (e.g., content moderation on social media platforms).
Economy
Digital technologies have increased the capacity of autonomous self-reproduction and colonization of the economy. The data economy has become so central that data are progressively regarded as capital,Footnote 107 be they ‘coded’ through law or not.Footnote 108 This phenomenon has increased the already alarming commodification tendencies of global, neoliberal capitalism. Here, one main problem is informational capitalism, understood as a business model based on the monetization of information and data collected by the actors of the digital economy, characterized by a compulsion to engagement growth that – combined with oligopolistic marketsFootnote 109 – triggers vicious dynamics. Informational capitalism does not just affect individuals’ material and psychological conditions of existence; it also drains social systems and collective actors (political movements, business entities, media, education, and research institutions) of their functional autonomy. Its effects on individuals’ mental health, and on political engagement and politics, are well known, as they are to the actors involved.Footnote 110 In some ways, digital platforms are societal black holes, capturing other systems in their ever-growing accretion disc. Importantly, the externalities produced by the digital economy affect the capacity of politics to produce consensus-based decisions; of science to produce socially shared truth;Footnote 111 of the non-digital economy to produce and redistribute economic value; and so on.
For example, in terms of the economy/politics interface, digital and cryptocurrencies and smart contracts endanger the capacity of politics to influence economic processes through monetary, budgetary, and fiscal policies and politically legitimated decisions, affecting the capacity to redistribute economic value to the purposes of political consensus. In terms of the economy/press interface, the problems of journalism certainly did not start with the digital revolution. However, the effects of real-time web analytics, clickbait on social media platforms and information bubbles on the quality of journalism are well knownFootnote 112 and have led to the consolidation of larger news organizationsFootnote 113 and a transformation in the professional self-understanding of journalism.Footnote 114 In terms of the economy/science interface, digitalization and open-access solutions managed by business corporations run the risk of increasing publish-or-perish, reputation-seeking dynamics and predatory publishing and of reinforcing the position of hegemonic actors.Footnote 115
Digital constitutionalism has often addressed such issues using a piecemeal approach, inspired by liberal theory assumptions. Still, some particularly apparent problems brought by the digitalization of the economy have been addressed quite quickly. Central banks have proved ready to defend their control over currencies against business capture in the form of crypto-currencies and crypto-finance instruments.Footnote 116 A similar development can be identified where the dynamics of (social) power are relatively easy to identify. Especially after the COVID-19 pandemic exposed, in all its gravity, the conditions of platform workers,Footnote 117 some courtsFootnote 118 and legislatorsFootnote 119 have been acting relatively swiftly to ensure that such workers enjoy access to the legal protections afforded to employees.
However, other dynamics remain largely off the radar. One example is content monetization, which is characterized by the potential intertwinement of commercial and political speech and remains a blind spot for public regulatorsFootnote 120 mostly left to private governance.Footnote 121 Another significant example is provided by the fields of data protection and data ownership,Footnote 122 generally gravitating around valid legal consent and right to property of individuals. This approach, however, often does not consider well-known problems of consent in privacy law,Footnote 123 exacerbated by the business models of Big Tech companies and their purposeful cultivation of users’ ‘digital resignation’.Footnote 124 Further, the treatment of data by Big Tech platforms is not only a matter of individual privacy and valid consent, especially considering the collective dimension of related harms.Footnote 125
These problems emerge even with the most advanced regulatory instruments, such as the 2016 GDPR of the European Union.Footnote 126 This has been a relative success as a form of ‘Brussels effect’Footnote 127 and, more recently, enforcement agencies have started to deploy its potential less timidly.Footnote 128 However, besides serious enforcement issues,Footnote 129 the GDPR is still ‘grounded in procedural and neoliberal paradigms: the primacy of individual rights, individual choices, and self-determination [which do not] capture the most salient aspects of data in platform ecosystems … Data is relational and collectively constructed in ways that individual consent or self-determination guarantees cannot alone address.’Footnote 130 Even the recent Digital Services Act (DSA)Footnote 131 goes in the same direction when it falls short of a complete ban on targeted advertising and, in order to prohibit the use of UX tweaks to manipulate/force consent, requires platforms to offer parity in consent flows for refusing or agreeing to hand over data (Art. 25).Footnote 132
Furthermore, even in fields covered by current initiatives, the focus often remains relatively narrow. For example, the substantive scope of the guarantees provided by the European Union’s proposed Platform Work DirectiveFootnote 133 is limited to so-called ‘gig’ workers, even though algorithmic management is now present in workplaces and sectors well beyond the ‘core’ platform businesses.Footnote 134 From yet another perspective, current discussions rarely capture the transnational dimension of platform economy, potentially triggering races to the bottom on wages and workers’ rights, related to geographical differences in skills and labour costs.Footnote 135
A societal constitutionalism-oriented approach may contribute to partially recalibrating the focus. It starts from the assumption that informational capitalism poses significant constitutional issues even when single, fully informed and non-coerced individuals can access and validly consent to the treatment of their data and, more generally, interact with digital technologies.Footnote 136 For example, it points to the necessity to further explore risk-based regulatory modelsFootnote 137 inspired by consumerFootnote 138 and environmental law.Footnote 139
Another contribution is the spotlight on the threats of informational capitalism on the institutional dimensions of rights beyond individual freedoms – for example, on the integrity of science. In this regard, societal constitutionalism-oriented approaches focus on how to establish new prohibitive rules and to enforce non-binding norms emerging from within the involved sectors.Footnote 140
Further, societal constitutionalism-oriented approaches focus on the digitalization of the economy in its transnational dimension and on collective/social rights. This consideration applies to different proposals targeting digital service providers. Here, while digital constitutionalism’s liberal assumptions can be identified on both sides of the Atlantic, they are influenced by distinct conceptions of the relationship between state and society and their own varieties of capitalism.Footnote 141
In the United States, legislators let the digital economy expand with little to no regulation and courts do not normally give legal relevance to the private power exercised by digital actors, leaving them grow in a sort of regulatory vacuum.Footnote 142 In hindsight, this is coherent with the emergence of Big Tech companies as veritable ‘governors’,Footnote 143 sometimes with de facto normative and adjudication systems.Footnote 144 Further, it is coherent with proposals focusing on lifting intermediary immunity under section 230,Footnote 145 which makes it extremely difficult to hold platforms liable for illegal content,Footnote 146 and on antitrust law as the main instrument to break Big Tech giants and even as an instrument of democratization.Footnote 147
In Europe, the DSA and the Digital Markets Act (DMA)Footnote 148 go in a partially different direction. Indeed, they aim at ‘constitutionalizing’ the role of digital service providers in matters of data collection and content moderationFootnote 149 and at enhancing the role of private actors in enforcement mechanisms.Footnote 150 At the same time, European courts have been more open to taking into consideration the societal role of social media companies, sometimes applying constitutional rights in inter-private relationships through the explicit or implicit recourse to the time-honoured doctrine of horizontal effect of fundamental rights.Footnote 151 However, these instruments ‘still address significant threats to fundamental rights on a market access fashion.’Footnote 152
In different ways, then, both US and European approaches still intervene only externally on the ‘governors’ of the digital economy. Such actors are still in control, and informational capitalism remains at the core of their business model. From the perspective of societal constitutionalism, such approaches are insufficient because they hardly intervene on the internal structures and cognitive processes of the actors involved. In the case of digital companies, this approach is often ineffective or triggers unintended, paradoxical consequences such as collateral censorship, over-blocking and de-platforming.Footnote 153
A societal constitutionalism-oriented approach focuses also on changing internal structures and incentives. In this direction, it supports proposals such as those advanced by Balkin, arguing against the outright repeal of intermediary immunity from liability of social media companiesFootnote 154 and suggesting leveraging such immunity by conditioning it on social media companies ‘adopting business practices that ensure their trustworthy and public-regarding behaviour’.Footnote 155 This approach could be expanded through tax, labour and company law instruments.
A first proposal would be introducing forms of ‘digital capital tax’ – that is, progressive taxation tied to the quantity of active users and/or data processed by digital service providers, regardless of any related profit.Footnote 156 Undoubtedly, this proposal builds on literature qualifying data as capital as such,Footnote 157 to be targeted to the purposes of taxation and economic redistribution.
A second proposal would be imposing on the private actors of the digital economy and digital service providers within certain dimensional and economic thresholds forms of corporate governance, involving co-decision with representatives of collective interests (labour, health, press, environment, etc.). Importantly, this proposal does not target only the business model – informational capitalism – but the legal infrastructure and the organizational models of the economic actors profiting from it.
A third proposal would be imposing obligations or at least linking incentives (tax breaks or liability immunities) to the negotiation and effective implementation of transnational company agreementsFootnote 158 with associations of workers, artists, journalists, local communities and other groups in the different systems in which they operate. Such agreements should concern not only employment conditions but also redistribution of the profits to both individuals and collective entities whose (digital) labour is monetized.Footnote 159 Such agreements, in turn, may be overseen and monitored by public authorities and/or public interest certification bodies, possibly linked to international institutions such as the International Labour Organization.Footnote 160 In the same context, the Australian News Media Bargaining Code of 2021Footnote 161 – designed to have large technology platforms pay local news publishers for the content made available or linked on their platforms – remains an interesting experiment.Footnote 162
Importantly, these proposals aim to reduce the reliance on the business model of informational capitalism; to redirect value into activities not immediately related to data economy; to internalize non-economic incentives and impulses coming from digital economic actors’ social environment; and to reduce the need to link regulatory interventions to the violation of individual rights. Importantly, they intervene on the internal structures of economic actors but are not forms of market constitutionalism.Footnote 163 Rather, they aim to unveil, sustain and exploit contradictions rooted in material conditions of the digital sphere. By these means, they are meant to trigger and sustain processes of struggle and contestation within the involved systems, to set preconditions for repoliticization and to open up to non-predetermined policy outcomes, while at the same time reducing the competitive alignment of national systems of social and economic protection. They search for interventions ‘in relation to law, rather than under its auspices’.Footnote 164 Here again, societal constitutionalism may contribute to make digital constitutionalism become an authentic (global) constitutionalism, whereby economic processes emerged from digitalization can be both enabled and constrained beyond purely market-based rationality. In this sense, such a move also connects digital constitutionalism to the current ‘social’ turn of global constitutionalism.Footnote 165
Law
The impact of digital technologies on law has long been studied. In the digital constitutionalism discourse, the focus is mostly on legislative, judicial and administrative (state) functions, in their relationship with individuals and their rights.Footnote 166 The literature has analysed future-proofing legislationFootnote 167 and experimental regulation,Footnote 168 as well as the impact of digital and algorithmic technologies on administrative,Footnote 169 judicialFootnote 170 and law-enforcement settings.Footnote 171 Attention is also paid to how the augmented speed and quantity of conducts in specific regulatory fields – for example, online speech – trigger a qualitative shift in the way law operates.Footnote 172
Especially in the 1990s and 2000s, techno-enthusiasts have seen in new technologies the opportunity to either get rid of legal regulation altogether; or at least to make law ‘computable’, so legal issues are ultimately decidable according to a strict binary relation 1/0.Footnote 173 Similarly, the application of machine-learning and AI to the legal profession would increasingly improve so-called predictive justice, thus making most human legal professionals redundant.Footnote 174 Such developments would arguably fix some features of the law perceived exclusively as problems: slowness, inefficiency, complexity, relative unpredictability. Therefore, with a degree of simplification – and leaving aside anarcho-libertarian views – one can identify an oscillation between two paradigms:Footnote 175 first, a ‘competition’ paradigm, whereby the digital code and its inherent normativity stands as a competitor of law – of the legal code – and may potentially replace it as an instrument of social regulation;Footnote 176 and second, a ‘hijacking’ paradigm, whereby the digital code changes the nature of law and the way it operates.Footnote 177
In both cases, critical approaches highlight related risks, especially the fact that technologies may strengthen the role of law in cementing the hegemony of groups that already control law-production and, more generally, the fact that both paradigms enormously increase the colonization capacities of politics and capitalist economy towards other systems.Footnote 178
What is the contribution of societal constitutionalism to this debate? First, it helps individuate different trends as part of a single phenomenon, pre-dating the emergence of digital technologies. Digital technologies made dynamics inherent to modern Western law emerge even more clearly. In normative terms, this view calls for an increased attention to the judicial and administrative structures that deal with and use new technologies. But even more importantly, and in contrast to discourses centred around individual rights, (judicial) redress, and litigation, digital constitutionalism needs to re-focus on administrative law, conceived also as the law of the social planning – that is, the law dealing with the redistribution of social and economic value in a relatively centralized way.Footnote 179
Second, by focusing on the constraint and protection of law’s specific communication medium (juridical authority), societal constitutionalism helps keep together both the ‘competition’ and the ‘hijacking’ paradigms. In contrast to approaches treating law too instrumentally, as if it were only a tool augmenting dynamics lying elsewhere (mainly in politics and economy), societal constitutionalism highlights that juridification of society – exponentially amplified by digital and data-driven technologies – is a risk in itself, and not just to the extent that it serves political or economic purposes.Footnote 180 The unconstrained juridification of the social world made possible by computation enormously increases the dangers deriving from the standardization/normalization imperative of juridical authority, even in hypothetical non-capitalist societies. Relatedly, especially in the light of the disciplining effects deriving from its internal dynamics,Footnote 181 law needs to remain scrutable and contestable.Footnote 182
With regard to protection, societal constitutionalism calls for the preservation of some ‘imperfect’ features of law. As a specific form of social regulation, law presupposes a distinction between norm-making and norm-abiding, a distinction that preserves areas of agency, potential disobedience and ultimately humanity. The idea of the rule of law implies the possibility of its breach. Preserving this possibility for the law – however “just” – to be violated, as well as a certain degree of openness, uncertainty and unpredictability – in turn linked to law’s medial, cultural, and human features – is important for several reasons. First, it preserves its capacity to absorb cognitive expectations from its environment, that is, to its ‘learning’.Footnote 183 Second, it leaves room for the micro-variations that are fundamental to preserve law’s capacity to regulate and evolve with society.Footnote 184 Third, it preserves its autonomy as a distinct social system that is not entirely exploitable by other systems, notably politics and the economy.
Valuing such imperfect, inefficient features is counter-intuitive, especially if one builds on ideas of judicial activity as the result of if/then syllogisms, of law-making as the result of a democratic will giving rise to determinate commands and of certainty as mere consistency. To protect the reflexive nature of legal knowledge and normativity, one must embrace its incomplete/contingent nature. In fact, ‘there are limits to the computability of legal reasoning and, hence, the use of AI to replicate the core processes of the legal system’.Footnote 185 Techno-enthusiasts, who see hyper-determinism and the ‘legal singularity’Footnote 186 as positive outcomes, may have some traction in the public discourse also because they build on assumptions deeply rooted in traditional constitutional theory. Questioning such assumptions, then, is a critical contribution of a digital constitutionalism informed by societal constitutionalism. In positive terms, this calls for a jurisprudence linking, without merging, the coercive effects of technology – in both its materiality and its cultural/social fallout,Footnote 187 the normative structures and processes that are specific to lawFootnote 188 and its human features.Footnote 189 Indeed, the socio-technical substratum of digital technologies influences its constraining effects, the actual possibilities for transformation, and the contestation of norms and policy solutions.Footnote 190
The third contribution of societal constitutionalism concerns legal pluralism, understood also as a critical stance towards state-centred legal theory. Legal pluralism is by no means foreign to digital constitutionalism, but societal constitutionalism pushes it to take it more seriously. This means addressing at least four aspects as part of one analytical and normative framework.
First, a differentiated assessment of the impact of digital technologies on qualitatively distinct types of normative systems, or ‘jurisdictions’, is required.Footnote 191 Digital and data-driven technologies affect both state and non-state normative orders.Footnote 192 Furthermore, such technologies trigger different dynamics, depending on the type of communication medium (power, money, knowledge), the institutional form (states, corporations, IOs, transnational regimes) and their ideological/cultural environment.
Second, there is a need for an assessment of the impact of the digital and data-driven technologies on different techniques of co- and self-regulation. New technologies do not only facilitate the autonomization of non-state normative systems; they also change how state and non-state normative systems relate to each other and, importantly, how they may inform each other’s evolution.Footnote 193
Third, the development of conflict-of-law approaches specifically suited to the normative conflicts arising from the application of digital and data-driven technologies is imperative.Footnote 194 Such approaches, already emerging in the practice of adjudicators dealing with both stateFootnote 195 and non-state normative orders,Footnote 196 should be oriented not only to impose sanctions or solve conflicts but also to trigger processes of learningFootnote 197 and effective constitutionalization within the involved systems. The internal procedures and structures of digital ‘governors’ such as Google and Meta must be made responsive to external demands so they can be turned into actual changes in their operations and in the effective limitation of their expansive tendencies.Footnote 198 Strategically exploiting the reflexive dynamics of the involved systems is thus one of the goals of a pluralist constitutional theory suited to the reality of digital technologies.Footnote 199
Fourth, an assessment of the fragmenting impact of different normative orders emerging from the digital sphere on legal subjectivity is required.Footnote 200 The normative/disciplining effects of digitality and data-driven technologies – whether based on the legal code or not – do not just contribute to the social construction of individual and collective actors, but also frame their sociolegal position differently, ranging from their outright invisibility to indirect legal relevance to the recognition of personality with only a few legal entitlements up to the full-fledged armoury of legal rights granted in that specific system. Importantly, these effects are different for each of the centres of digital normativity. The normativities emerging from digital platforms such as Meta have different social construction effects from, say, those emerging from states’ digital administration, or those from organizations governing the infrastructure of the internet such as ICANN, or blockchain-based networks such as Bitcoin. Such multiplicity gives rise to continuous fragmentation, reconstruction and mutual reconfiguration of ‘relational subjects’ that the theory of digital constitutionalism needs to capture comprehensively.Footnote 201
IV. Conclusion
This article has highlighted digital constitutionalism’s critical and transformative elements, using the instruments provided by societal constitutionalism as a strand of global constitutionalism. It argued that, in order to address the challenges posed by new technologies, digital constitutionalism should embrace an explicitly critical discourse, questioning several assumptions of liberal, state-centred constitutional theory. By overcoming its inner contradictions, digital constitutionalism could be framed as a more ambitious constitutional theory for the digital age and as an opportunity for a long-overdue reckoning of constitutional theory with itself.
However, unveiling contradictions is not an end in itself. Rather, highlighting contradictions has – indeed, must have – a transformative outlook, so that constitutionalism may address questions largely left unresolved if not hidden: private societal power, relevance of (transnational) legal pluralism, harms deriving from depersonalized social processes, democratic legitimation beyond the state.
How does this relate to the Lloyd decision recalled in the introduction? That particular case was recalled mostly for its explanatory value, as it highlights the inner limits of liberal understanding of individual rights. An authentically transformative digital constitutionalism needs to focus on the analytical and normative premises leading the UKSC to decide in such a way. First, massive illegitimate treatments of personal data need to be addressed as a question of constitutional relevance, not only for the immediate harm to the people involved but also and foremost for the broader societal effects triggered by such treatments. In that case, it was addressed through the language and instruments of tort law, private rights, and compensation claims instead of, say, administrative law. Second, absent a suitable class action, the need to individualize the harm to the purposes of the compensation pushed the claimants to choose a weak procedural strategy based on a representative action. Third, a narrow understanding of ‘damage’ limited to material or mental effects on single individuals fails to address – and even obscures – the trans-subjective nature of the harms triggered by mass collection and processing of data by business actors.
Even beyond the specific procedural history of the Lloyd decision, there are several issues that a different approach to the UKSC case may unveil. Among them are the legal and economic structures incentivizing a digital ‘governor’ such as Google to the illegitimate treatment of users’ data; and the model of corporate governance of a company dealing with such a huge amount of data and with such a significant societal role. These issues should be brought more decively to the fore of the scholarship using a constitutionalist language. In that sense, this article called for less criticism and more (self-)critique through the instruments provided by societal constitutionalism as the strand of global constitutionalism best suited to the challenges of digitality.
Acknowledgements
For precious comments, suggestions, and criticisms, I am indebted to Giovanni De Gregorio, Lucas H. Muniz da Conceição, Raffaela Kunz, Julieta Lobato, Giuseppe Martinico, Tamar Megiddo, Nofar Sheffi, Thomas Streinz, Gunther Teubner, Giorgia Valentini, and two anonymous reviewers. I would also like to thank the participants to the workshop ‘Towards digital constitutionalism. What governance for online platforms?’ (European University Institute, 26 November 2021) and to the session ‘Constitutionalism(s): From Liberal to Digital’ of the Global Meeting of the Law & Society Association (ISCTE University Institute of Lisbon, 14 July 2022), where earlier versions of this paper were presented. All errors remain my own.
Open access
