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- PublicationDigital Constitutionalism: The Role of Internet Bills of Rights(University College Dublin. School of Law, 2020-01)A series of transformations within contemporary society is profoundly affecting the constitutional ecosystem. Existing constitutional norms shaped for ‘analogue’ communities struggle to address the challenges of the digital revolution. A unique response to this scenario has been the emergence of Internet bills of rights, non-binding declarations advocating constitutional principles for the digital society. This thesis examines this phenomenon, investigating in particular the role of these initiatives from a constitutional perspective. The first part of this work contextualises the emergence of Internet bills of rights. It is argued that contemporary society is witnessing a new constitutional moment. The constitutional ecosystem is reacting to face the challenges of the digital society through different normative instruments, including, but not limited to, Internet bills of rights. In light of the global and transnational character of the issues generated by the digital revolution, constitutional counteractions also emerge beyond the state dimension. The constitutional discourse is necessarily plural. However, these constitutional fragments can be interpreted as matching tesserae of a multi-level process of constitutionalisation. It is contended that these complementary normative responses share the goal of substantiating a form of digital constitutionalism, aiming to translate the core values of contemporary constitutionalism in light of the mutated characteristics of the digital society. The second part of this work analyses the role of Internet bills of rights in this complex process. It is claimed that, using the lingua franca of constitutions, these declarations aim to be part of the conversation on how to shape our constitutional principles in the digital age. Crucially, their informal and non-binding character enables the participation of a broad number of actors and enhances their capability of advancing innovative ideas. It is therefore argued that Internet bills of rights play a compensatory and stimulatory function within the ongoing process of constitutionalisation of the digital society. The analysis of their scope of application and substantive content is then presented as a litmus test of the health of our constitutional systems, highlighting areas affected by constitutional ‘anaemia’, a significant mismatch between constitutional norms and social reality, and thus requiring an urgent update.
- PublicationTerms of service and bills of rights: new mechanisms of constitutionalisation in the social media environment?(Taylor & Francis, 2018-05-21)From a cursory look at the terms of service of the main social networking websites, it is immediately possible to detect that Facebook’s show a peculiar configuration. Although they represent a mere contract between private parties, these terms adopt the traditional jargon of constitutional texts and articulate their contents in terms of rights, principles and duties. This curious pairing between norms regulating social media and the constitutional sphere is also apparent in a series of non-binding documents that are unequivocally named ‘bill of rights’ and seek to articulate a set of principles to protect social media users. This paper examines whether the emergence of a constitutional tone in this limited number of texts could be related to the effective, or aspirational, constitutional function that these documents exercise. The identification of a series of significant shortcomings will lead to exclude that social media’s terms of service and bills of rights of social media users currently play a constitutionalising role. Nevertheless, the possibility to theoretically justify the use of these documents as mechanisms of constitutionalisation in the social media environment will be adduced as an evidence of the potential constitutional aspirations of these texts.
- PublicationDigital constitutionalism: a new systematic theorisation(Taylor & Francis, 2019-01-03)‘Digital constitutionalism’ is an appealing concept to explain the recent emergence of constitutional counteractions against the challenges produced by digital technology. However, the existing scholarship does not offer a unitary picture of this notion. This paper carries out a literature review of the topic and suggests a new systematisation of the theoretical framework surrounding the concept of digital constitutionalism. It is argued that digital constitutionalism is the ideology that adapts the values of contemporary constitutionalism to the digital society. It does not identify the normative responses to the challenges of digital technology, but rather embodies the set of principles and values that informs and guides them. Conversely, the emerging normative responses can be regarded as the components of a process of constitutionalisation of the digital environment. In light of the adopted definitions, the paper ultimately illustrates a new way of mapping the constitutional responses that have emerged to address the challenges of digital technology. They not only include the constitutional tools that we could define as ‘classic’ in the context of constitutional theory, such as the binding legal texts produced in the state-centric dimension, but, significantly, also new instruments, which are developed in the transnational dimension of private actors.
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