Digital Constitutionalism and Democratic Participation: In Conversation with Moritz Schramm

“We may think that, in the year 2022, we have an ideal democracy… But it is not an ideal democracy, and yet it is still definitely more democratic than the internal, opaque, and absolutely independent rule-making within a private company.”

With the EU moving forward with the new Digital Services Act, in today’s episode of the RevDem Rule of Law podcast, our assistant editor Alexander Lazović sits down with Moritz Schramm to talk about the connections between digital constitutionalism, the Rule of Law, the role of court-like settlement bodies, and democratic participation in the digital sphere.

Moritz is a PhD researcher at the DFG Graduate Program ‘Dynamische Integrationsordnung (DynamInt)’ at the Humboldt-University of Berlin and recently published an article on The Digital Constitutionalist platform entitled ‘Where is Olive? Or: Lessons from Democratic Theory for Legitimate Platform Governance’.

Alexander Lazović: In your blog post, you compared today’s debate on digital constitutionalism to the family from Little Miss Sunshine. In that movie, a family accidentally leaves their daughter, Olive, behind at a gas station. You argue that in the digital constitutionalism debate, the family of digital rights, Rule of Law and regulation has left behind the notions of democracy and user participation. In doing so, you argue, digital constitutionalism has reduced the concept of constitutionalism to individual rights and courts. Could you explain briefly for our listeners what you mean by this?

Moritz Schramm: Let us start with the problem that people who consider themselves digital constitutionalists try to solve. The bigger context of the area we are talking about is human communication online. Everything I am going to speak about is how we, as humans, communicate online and specifically how we communicate on social media. Because a lot of political, social, economic and cultural discourse we have today takes place on websites such as Facebook, Twitter or Instagram to an extent.

The problem at the very heart of digital constitutionalism is a power imbalance between one very powerful institution – the platform – and the much less powerful group of users.

Those individual users only have negligible influence on this platform. The platforms are usually organized as private companies, and they organize – or exercise – their power in their power-relations with their users in the form of rules. They make rules independent of the users and they enforce these rules vis-à-vis – or even against – the users. Digital constitutionalism addresses this problem. It makes the very simple, and I would say absolutely correct, proposition that we should look to the past. There we see how we tamed the other big powers of the past, namely the sovereign state, the nation-state, and their sovereign rule making and sovereign rule enforcement against people. One of our approaches was constitutionalism. Digital constitutionalism wants to remodel it, revamp it, and apply it to the giants in the digital sphere. So this is, of course, a lot of shiny words and nice language.

But the very basic idea is to use the old concepts from the early days of constitutionalism and to apply them to platforms.

This includes broader notions of applying the concepts to all platforms, or more concise and narrow notions of applying them only to the communication sector.

In my blog post, I link it to this very nice movie Little Miss Sunshine. In this movie, there is a scene where this family of five or six misfits sits in an old Volkswagen bus on a trip from Albuquerque, New Mexico, to California. At some point at a pit stop, they forget Olive, who is the six- or seven-year-old lovely, bespectacled kid who wants to win a beauty pageant in California. Once they have left the pitstop, someone realizes that they have forgotten her. This is exactly how I felt about some of the arguments made in this debate about digital constitutionalism. The arguments made have focused so far mainly on constitutionalism as we know it today, and not constitutionalism as it developed over more than 200 years. The arguments of digital constitutionalism focus predominantly on the experience with constitutionalism, judicialization, constitutional and supreme courts, and rights-based approaches that we have in Western liberal systems in the United States and in Europe. Digital constitutionalism currently argues that we have to subject these platforms to rights-based review and a few principles such as free speech.

While it is correct to subject platforms to a rights-based review and principles like free speech, that is only one step in a much bigger project.

Constitutionalism, which is focused on rights, as we have it in constitutions today in Western societies and policies, builds on hundreds of years of history and only exists in this very particular rights-focused form because it exists in a democratized context.

You mentioned the comparisons to constitutionalism in the past, and notions like democracy and fundamental rights which are usually used in the public sphere to reign states in whereas social media platforms are commonly private actors. While there are those who argue for more democratic participation in the private sphere – particularly regarding labor relations –  by and large private actors are not built on democratic structures. To take an obvious comparison: what is the difference between content moderation by a social media network and content moderation in my local newspapers’ letters to the editor?

Two or three thoughts on that. The first one is that I would push back on your oppositional structuring of corporate power on the one side and democracy on the other side. These are not things that have to be mutually exclusive.

 If we deconstruct democracy as meaning basically that those who are subject to rules will have a say in what the content of these rules should be, then it is something we definitely also see in the private sphere.

In companies, shareholders do have a vote. It is not one person, one vote because the vote is weighed in relation to the shares you own. But, in principle, there are also democratic elements in private governance. The idea of coming to a decision and not having to obey rules upon which you do not have any influence is also a governance mechanism that is featured in private institutions as well. On the other hand, if you go back into the history of democracy, the early republics in Renaissance Europe had democratic elements, but they were based, for example, on land ownership. All these concepts are in flux, and we compare them sometimes against ideal notions. We may think that, in the year 2022, we have an ideal democracy in a state like Germany. But it is not an ideal democracy, and yet it is still definitely more democratic than the internal, opaque, and absolutely independent rule-making within a private company. However, I think that there is an element of learning between those actors, and there is an element of congruence and therefore I would not conceive of those structures as so exclusive.

My second point is the reason why we are talking about subjecting the platform power of large enterprises like Facebook, for example, to principles and procedures that are reminiscent of public law or constitutional law in the digital constitutional spirit.

These online platforms exercise, within the specific context of communication, a power so far reaching and so complete that it is really reminiscent of the power structure of sovereigns in earlier days.

The big difference to your local newspaper is that you cannot simply move beyond one network. Especially from the economic perspective, those networks are monopolists. If you do not like the way that, for example, communication works on Facebook, you cannot simply say that therefore you will go to Twitter. That is something that really does not work. The product that, for example, Facebook offers is not replaceable or re-doable on another network, especially for business companies but also to users. There is a lot of research on this. Hirschman’s idea of exit and voice does not really exist. If you exit, you are out of the communication flow, whereas with your local newspaper there are more newspapers. They may not be the local newspaper, so in that sense you can say that you also cannot leave. But there are many more newspapers of a similar scale and size. Therefore, I think that the comprehensiveness of the regulatory might vested in those platforms is just so different and so much bigger that, when leaving is not an option anymore, we have to begin regulating the platforms.

Maybe let us turn to the Rule of Law now, because this is an issue that you also address. You point out that social media platforms like Facebook are now setting up their own quasi-court systems. In a recent presentation, you called this ‘juridic governance’. You claim that these are qualitatively different from other out-of-court settlement procedures. Could you elaborate on that?

Juridic governance is a concept I tried to develop in my larger Ph.D. project, and it describes a turn in post-state governance towards using adjudication as a tool of governance or as a governance mechanism, so to speak. As it is post-state governance, of course it cannot be done by just simply establishing courts. Courts are either limited to the nation-state or to quite complex international or supranational organizations. I think that we see an emulation of court-like procedures, court-like structures, in judicial decision-making bodies that are similar to courts. They look like courts, they speak like courts, but they are specifically labeled not to be courts because there is no formal authority – or formal competence, to use a German term – to establish them.

 I tried to capture this court-emulation through this phrase about and from architecture: form follows function.

There is a problem, namely a power-imbalance. We have the function to control it. And in our contemporary thinking, we know that courts are the method to control power. Therefore, we see judicial decision-making beyond courts as the solution in situations where we are beyond the state, and where we are beyond our current concepts and structures of power.

More specifically, this means that I look at different examples of adjudicatory bodies that are quite court-like, but not quite courts. And we have them in private governance, for example, Facebook’s Oversight Board is the most famous example. But also in the proposed Digital Services Act of the European Union, we have Article 18 which establishes something called out-of-court dispute settlement bodies. This basically mashes together the logic from alternative dispute resolution of private, somewhat ad hoc bodies (although the Article 18 bodies are not ad hoc), with the logic of administrative courts. The idea is not to resolve a dispute between two parties about a contract or something, but to use the dispute to control power in a situation of hierarchy. I think the underlying idea that is being emulated here, which ties us back to the notion of digital constitutionalism, is judicial control of administrative action. This, of course, is reminiscent of ideas that we have in constitutionalism. But I think the solution is in one way much more mundane than what many digital constitutionalists say. The digital constitutionalism debate is always about important and shiny concepts like the Rule of Law and freedom of speech and so on.

 I think the more apt analogy for many of the problems we face in governance beyond the state, especially in the digital sphere, is of an administrative nature.

 Administrative law tells us how to deal with actors that are independent rule-makers and independent rule-enforcers. Administrative law is full of adjudication, which is used as a method to control and to improve this power, especially in the United States. Therefore, I make up this term juridic governance. It is based on legal sociology, especially on the term of juridification. This term was coined and used by many people, but at least in the German discourse, mainly by Gunther Teubner. It means that many more issues today are understood as issues or disputes concerning rights and are legally regulated. The Americans would call it legalism. These phenomena are reflections of that, and therefore they are juridic. I don’t want to say judicial, because they are not. They just look like it and function like it. And it is ‘governance’, of course, because it is a governance mechanism and tool. In my case-study so far, my hypothesis that they exist and that they are quite a big deal seems to be true.

Let us focus on this aspect you mentioned that ‘form follows function’. If I understand you correctly, you argue that one of the problems is that governance follows the form of courts, but it remains private in nature. Therefore, it does not necessarily share public values. Yet could one not argue that form does not only follow function, but function also follows form? If you set up bodies that look like courts and fill them with lawyers, is it not possible that this creates a legal discourse that emulates values like judicial independence or fundamental rights?

Yes, I think that cuts pretty much to the core of my project. All these concepts are inherently relative and nothing is definite.

 At the end of the day, I am actually quite optimistic about the future trajectory, even if I criticize much about post-state governance, especially in the digital sphere.

A similar argument, to a lesser extent, could be made about the EU. The EU executive power is quite undemocratic in many regards and the only control mechanism they have is the Court of Justice of the EU, which sometimes does not control the executive very intrusively.  There are more examples of juridic governance, which I also research. But this does not necessarily have to be a problem. If we look at judicial control of executive power in history, we see that there, too, control and democratization did not happen at the same time. For example, in Berlin-Kreuzberg, just two kilometers from where we are sitting right now, there was a judgement called Kreuzberg Urteil by the Prussian High Administrative Court in 1882. The Kreuzberg decision subjugated the Prussian police to judicial control. And that was 40 years before Germany became a democracy. These things alternate. They come in pairs, but they do not have to necessarily transpire at the same time.

 It is absolutely fine if we start with rights and judicial control, and then participation and rule-making comes after. But it has to come at some point.

The same goes for the point regarding form follows function and function follows form. I am a trained public lawyer and everything I see and say goes through this public law lens. The way we conceptualize and control our public power in the state of Germany, in the European Union, and at the international level, sometimes also developed out of how we controlled different forms of power before, for example the church or even private power. These things come and go and therefore there might definitely be a situation in which this develops into the judicial power of the future, so to speak, not as an alternative to or replacement for courts as we know them today but as an extra – a cherry on top, perhaps.

Let us then turn to the lack of democratic checks on content moderation. In Germany, to take an example that we are both familiar with, civil courts have found that they are competent to review Facebook’s content moderation for excesses. On the other side of the spectrum, when the German government issued the so-called NetzDG –  also known as lex facebook –  which sets specific time frames for the deletion of content deemed illegal under criminal law, this drew vast criticism from the digital community. Finally, you mention yourself the efforts of the EU to pass a digital service regulation which expressly states that, in content moderation, intermediaries have to pay due regard to rights and legitimate interests, including the applicable fundamental rights. In light of this kind of regulation of social networks, could one not say that there is at least mediated democratic participation in content regulation already?

Mediated democratic participation is a very nice term and I might have to ask for permission to use it at some point! But I would push back on the idea that fundamental rights are forms of mediated democratic participation in a broader sense. I mean, Americans and our contemporary constitutionalist discourse conceptualizes in that way. And with reason – litigation based on individual rights democratizes power. That is a fact. But it democratizes power in contexts in which it has to democratize that power against majoritarian decisions that are wrong from a normative perspective, namely the constitutional perspective. What the Digital Services Act does right now is that it tells companies like Facebook that they can make their own terms and conditions, and can set a normative framework in a certain normative corridor. And that corridor is a few fundamental rights. Well, let us see what really makes it to the final version of the DSA, but it will likely be something like fairness, transparency and fundamental rights, such as freedom of speech, freedom of assembly, or freedom of the press. And if that is violated, then users can litigate in front of those specific adjudicatory bodies.

 But what they do not do in the Digital Services Act, except for this normative framework, is also force the platforms to establish a procedural framework for users to participate in a deliberate way or in a conversation on what those values and rules should be under specific circumstances.

The majoritarian element, as we know, has many flaws. I do not argue for full majoritarianism, that would be disastrous. It also would not work by virtue of the fact that Facebook had “elections on its community standards” but they died out because nobody voted. So there has to be a specific form of participation. It cannot be a general vote in which everyone deliberates, in an idealized Habermasian understanding of things. That would not work. I am always pushing this administrative perspective, because in administrative law there are many procedures for how to infuse stakeholders and how to advance representation, and for notice-and-consent regimes.

If we construct a house, sometimes neighborhood councils have to agree on different boards. This kind of community-based representation is something that is at this moment absolutely missing on these platforms. I think that we should look towards this more nuanced sub-constitutional, sub-parliamentary understanding of democracy.

We must strike a balance between normatively bound rules on platforms, which is something the Digital Service Act maybe achieves, and rules that are actually grounded in the social groups that are governed by those rules. That is something that can only be done by participation.

There are informal examples of participation right now already. Twitter, for example, has consultations. And the other big companies as well, if they want to ban certain types of nudity, they commission expert reports and they ask people from a certain specific social context. So this already happens to an extent. But I do believe that there is a role for public law here, and for constitutionalism as well. Democracy, in my perspective, is, or should be, one of the core ideas of constitutionalism. It is not only about an Anglo-Saxon narrow understanding of the Rule of Law and a strong court at the very center: constitutionalism is also about providing well-functioning means to voice your opinion not only vis-à-vis other users, but also vis-à-vis the power that governs you.

Well, after that I feel bad bringing the topic back to courts again. But I am a lawyer and I study courts. So instead of democracy, let us talk for one last minute about courts and juridical governance. Do you think that this specific form of content regulation via these quasi-courts will make the decisions issued by the private players more palatable for judges? Do you think that regular courts may be less inclined to review decisions by these quasi-courts because they “talk-the-talk” compared to decisions by reviewers who are not lawyers? Or conversely, may the legal terminology used in such decisions make it easier for courts to review the decisions themselves as to their compatibility with national case law or even their own internal coherence?

If a traditional court like the Bundesgerichtshof (the German Federal Court of Justice) or some high court in the United States or in the UK were to review a decision by some of those out-of-court dispute settlement bodies or the Oversight Board, that would already be a tremendous step towards normalizing, legitimizing, and stabilizing them basically as judicial players in the field. We are not there yet. But I think that, especially for the Oversight Board, it really might only be a matter of time before this will happen. Then it will be an accepted method of self-control to establish your own type of quasi-private administrative court to check on your dealings. If this happens, I think we have to distinguish between what I would call the American and the European way.

The American approach, especially in the Oversight Board, is to decide very few cases which point to structural issues. The Oversight Board has full discretion on which cases it chooses to review. The idea is not to propel individual justice in the more than a million appeals they receive, but to use those cases to finger the pulse of Facebook’s governance and to use it to decide landmark cases. There might be some courts picking this up, especially lower courts.

 I think that, from a global perspective, that is really important for authoritarian contexts or less liberal contexts or countries. Those adjudicatory bodies can really be a shining example of somewhat progressive standards on freedom of speech.

For example, if we have the ability to quote these kinds of bodies, it might be an advantage in a debate in a country against your national censor or regulator. In the EU, however, the Digital Services Act’s approach is very much focused on the idea of individual justice. They have this idea of an effective remedy as enshrined in the Charter. Therefore, the idea in the proposal in Article 18 is that you can sue as much as you want, basically. I am a bit more skeptical about whether this European approach of individual case-by-case review turns out, at the end of the day, to be as effective as the US approach of certiorari. It diverts attention since it is much more about the individual cases and not so much about the structure.

But, and there is a very big ‘but’, I think it’s a very positive development in the legislative process that, especially in the European Parliament’s Committee on Consumer Protection, according to their submissions they apparently want to make dual use of these adjudicatory bodies. For example, they want them to make regular reports on best practices and on structural problems in the governance of platforms in the EU. Through these reports, those bodies who decide thousands of cases or even millions of cases perhaps would also finger the pulse of the dealings of platforms in Europe. They write reports and give them to an authority, which then gives them to another authority. This is, of course, a bit bureaucratic because it is an EU idea. But then at some point it bubbles up to the EU level. And there is of course vast regulatory power of enforcement vis-à-vis the platforms. It is kind of like a detour, but at the end of the day, I think we are both going in the same direction of using education as a method to better control the governance of private governance.

This transcript has been edited for clarity and length.

In collaboration with Teodora Miljojkovic

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