Constitutionalising online content moderation: the role of the CJEU under digital constitutionalism

Thesis

This Thesis examines the role the CJEU plays in constitutionalising online content moderation within the EU regulatory space. It breaks with traditional, liberal, state-centred constitutionalism and adopts a theoretical framework that allows for the identification of constitutional patterns in transnational private settings. Drawing on societal constitutionalism, it proposes a model of reflexive judicial review and oversight whereby courts do not translate constitutional values to the Internet but rather trigger their reconstruction by intermediary service providers. Instead of translators, courts act as joints or coordinators between state law and providers’ private orders. The Thesis is divided into two parts. Part I (Chapters One, Two, Three, and Four) establishes the theoretical foundations for the reflexive model. In Part II (Chapters Five and Six), the model is applied to the CJEU case law in two fields: 1) the obligations of providers to filter, block, and remove illegal content, and 2) the obligation of search engines to delist content from search results. The Conclusions (Chapter Seven) explore the prospects of the reflexive model.

The Thesis aims to address the problem of how constitutional democracies can restrain corporate power over the Internet and prevent its social harms—such as censorship, disinformation, electoral interference, and abusive speech—while avoiding the risks associated with states’ direct intervention in the flow of information. To tackle this issue, the Thesis engages with the literature of digital constitutionalism by interrogating its adequacy in rationalising power dynamics, vindicating its societal strand, and examining the judicial role in this context.

The Thesis’s contribution is two-fold. First, it adds to the societal strand of digital constitutionalism by foregrounding the role of courts as crucial structures in constitutionalising online content moderation. Secondly, it enriches our understanding of the judicial role in protecting fundamental rights and democracy in a decentralised, privatised, and globalised environment.

Authors: Orozco Y Villa, LH

• DOI: 10.5287/ora-vjkqyzko5
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Court of Justice of the European Union; societal constitutionalism; internet; governance; courts; right to be forgotten; regulation; digital constitutionalism; freedom of expression; technology; online content moderation; online platforms
• Subjects: Technology; Courts; Regulation; Internet governance; Constitutional law; Human rights; European Union; Freedom of expression; Internet governance--Law and legislation; Law; System theory; Online social networks