A New Geometry for Digital Constitutionalism?
摘要
In the last twenty years, the development of digital technologies has not only challenged the protection of individuals’ fundamental rights such as freedom of expression and data protection. Even more importantly, this new technological framework has also empowered transnational corporations operating in the digital environment as platforms to perform quasi-public functions in the transnational context. These two drivers have created a new phase of modern constitutionalism: the digital constitutionalism. Given this context, there is a growing literature related to the relationship between constitutional law and the evolution of the digital context, as well as to the emerging notion of digital constitutionalism. However, until now, there have been little analyses of the constitutive elements of the geometry of digital power, of the role of new actors in the digital context, as well as on the reaction that new changes and challenges have triggered on the part of modern constitutionalism. Therefore, this study will shift its focus from a classical vertical approach juxtaposing authority and freedom towards a horizontal approach. The objective will be to highlight the importance of redress mechanism as the instruments for limiting and containing the new powers. Particularly, the geometry of digital power will be conceptualized as having a triangular shape corresponding to the following three constitutive dimensions: (1) values; (2) actors; and (3) enforcement.