The Constitutionalisation of Platform Governance: Digital Constitutionalism and Democracy from a Societal Perspective

The governance of digital technologies is at a critical juncture, as the interplay between globalisation and sovereignty shapes the evolving regulatory landscape. This thesis investigates the constitutionalisation of digital politics, focusing on how sovereigntist and universalist discourses converge and diverge in the governance of digital platforms. By analysing these dynamics, the research examines how digital platforms mediate power and legitimacy within and beyond national contexts, evaluates the role of digital constitutionalism in promoting democratic values and human rights in a globalised yet fragmented regulatory environment, and explores how a societal approach to constitutionalism reconciles the tensions between global standards and local specificities. The thesis employs a comparative methodology to explore these questions, drawing from political theory, legal analysis, and case studies, including the European Union’s Digital Services Act (DSA), Meta’s Oversight Board, and the constitutionalisation of digital politics in Brazil. The methodological framework combines a genealogical perspective of digital regulation with critical legal theory, incorporating societal and post-structuralist approaches to constitutionalism. These methods allow the thesis to critically assess the normative aspirations and geopolitical realities underpinning digital governance. The thesis argues that the liberal and normative framework of digital constitutionalism extends traditional constitutional principles to the digital realm but often falls short in addressing the transnational complexities of platform governance. This approach, while promoting values such as the rule of law, transparency, and accountability, remains constrained either by its reliance on state-centric models, its technocratic and juridified adjudication model, or its normative and cosmopolitan approach to global perspectives of constitutionalism, which limits its applicability in diverse political and social contexts. Hence, the thesis advances a societal perspective of digital constitutionalism engaged with critical legal theory, advocating for a paradigm shift that transcends liberal norms by emphasising user participation, democratic deliberation, and the reflexivity between the social and material conditions of power in diverse governance mechanisms. This perspective highlights the potential of digital platforms to serve as agents of democratisation while recognising their embeddedness in geopolitical and economic power structures. These theoretical claims lead to the comparative analysis underscoring the divergence in regulatory approaches between the European Union and Brazil. The EU’s model, rooted in judicial activism and a juridified approach to human rights, seeks to establish global standards through a robust regulatory framework, recasting the cosmopolitan perspective of the EU political project to the digital environment. However, its universalist aspirations risk overlooking the socio-political specificities of regions beyond the Global North. Conversely, Brazil’s framework of digital regulation, combined with judicial activism, reflects a more context-sensitive strategy but faces challenges in maintaining institutional legitimacy amid political polarisation and democratic erosion. The Brazilian case illustrates the limitations of a purely sovereigntist approach, particularly in addressing the global influence of digital platforms and the asymmetric power dynamics between the Global North and South. The thesis concludes by advocating for a societal and critical legal perspective of digital constitutionalism that bridges the gap between normative ideals and the challenges of the contemporary matrix of platform governance. This approach emphasises the interoperability of constitutionalism, enabling the accommodation of diverse political, social, and economic realities within the aims of constraining power in the analogue and digital environments.