Constitutionalizing platform governance

This chapter proposes a normative framework for understanding the value of digital constitutionalism in a democracy. In contrast with other accounts of digital constitutionalism that are concerned with the power of private actors such as intermediaries and their impact on fundamental rights more generally, the focus of this chapter is on how public and private governance of communication platforms impacts public opinion and the implications of these processes and institutions for democratic legitimacy. It examines contemporary EU developments including the code of conduct on disinformation, the Digital Services Act, and the Media Freedom Act as examples of co-regulatory ‘regulation by design’ and ‘duty of care’ governance. After discussing the legitimacy deficit of such governance tools, it outlines constitutionalism as a normative theory to guide digital governance and institution building in Europe.