This chapter aims to analyse the evolving technological and legal intersection between content and data in the algorithmic society. The shift from parallel track to overlapping layers of these two fields contributes to examining platform powers and understand the role of European digital constitutionalism. The first part examines the points of convergence and divergence between the legal regimes introduced by the e-Commerce Directive and the Data Protection Directive. In the second part, two examples shows how the relationship between the two systems has evolved, looking in particular at how technological convergence has led to overlapping layers between the the fields of content and data which were conceived on parallel tracks. The third part examines the role of European digital constitutionalism with a specific focus on three paths of legal convergence.

This chapter analyses the path leading the Union to shift from a liberal approach to a democratic constitutional strategy to address the consolidation of platforms powers. This chapter aims to explain the reasons for this paradigmatic shift looking at content and data as the two paradigmatic areas to examine the rise of a new phase of European digital constitutionalism. This chapter focuses on three phases: digital liberalism, judicial activism and digital constitutionalism. The first part of this chapter frames the first steps taken by the Union in the phase of digital liberalism at the end of the last century. The second part analyses the role of judicial activism in moving the attention from fundamental freedoms to fundamental rights online in the aftermath of the adoption of the Lisbon Treaty. The third part examines the shift in the approach of the Union towards a constitutional democratic strategy and the consolidation of European digital constitutionalism.

This chapter highlights the reasons for the turning of freedoms to more extensive forms of private power by online platforms. Understanding the characteristics of platform power is critical to understand the remedies mitigating this constitutional challenge. This chapter analyses the two interrelated forms through which platforms exercise powers in the digital environment: delegated and autonomous powers. The first part of the chapter analyses the reasons for a governance shift from public to private actors in the digital environment. The second part examines delegated powers in the field of content and data while the third part focuses on the exercise of autonomous powers competing with public authority.

This chapter underlines how European digital constitutionalism supports the introduction of remedies in the field of content to protect freedom of expression in the algorithmic society. The first part of this chapter analyses the shift from a liberal economic narrative based on the metaphor of the free marketplace of ideas to the rise of online platforms power in moderating online content. Precisely, it focuses on the logic of content moderation, the rise of the algorithmic public sphere and the challenges to the protection of the right to freedom of expression raised by the private enforcement of fundamental rights. The second part focuses on the current status quo, underlining the first step of European digital constitutionalism to limit platform power and focusing on the horizontal effect doctrine as a potential way to fill the regulatory gap in the field of content moderation. The third part provides the approach which European digital constitutionalism would design to address the challenges of content moderation focusing on rethinking online media pluralism through transparency and procedural safeguards.

This chapter introduces the research questions, methodology and structure of the book. The first part defines the primary goal of the book consisting of reframing the role of constitutional democracies in the algorithmic society and introduces the notion of digital constitutionalism. The second part underlines the path of constitutionalisation which has led to the rise of multiple entities expressing their norms and spaces. The third part underlines the talent of European constitutionalism to react against the consolidation of digital powers while the fourth and fifth part defines the research questions and structure of the book.

This chapter argues that the characteristics of European digital constitutionalism would lead to find a third way escaping polarisation. The primary goal of this chapter is to underline how the talent of European digital constitutionalism would promote a sustainable growth of the internal market while protecting fundamental rights and democratic values in the long run. The first part of this chapter focuses on the relationship between digital humanism and digital capitalism underlining the potential path characterising the European approach to artificial intelligence technologies. The second part examines how European digital constitutionalism would lead to a third way between public authority and private ordering. The third part underlines to what extent the Union would likely extend the scope of its constitutional values to address the global challenges of artificial intelligence technologies. Once this chapter addresses the potential road ahead of European digital constitutionalism, the fourth part summarises the primary findings of this research.

This introductory chapter opens the book’s part on ‘Fundamental rights and rule of law in the Algorithmic society.’ By recalling the old prophecy of Herbert Marcuse, in the first and second sections, we outline pitfalls of the prevailing dominance of algorithmic decision-making on the pillars of Constitutional law. In the third section, we analyse how the fast-growing use of algorithms in the fields of justice, policing, public welfare, etc., could end in biased and erroneous decisions, boosting inequality, discrimination, unfair consequences, and undermining constitutional rights, such as privacy, freedom of expression, and equality. The final section is devoted to draw the roadmap of the entire book’s part, which covers chapters on ‘due process,’ ‘emotional Artificial Intelligence,’ ‘algorithmic administration,’ and ‘predictive policing.’