International Communication Gazette

The article develops digital constitutionalism as a common term connecting a constellation of initiatives that seek to articulate a set of political rights, governance norms, and limitations on the exercise of power on the Internet. We start by reporting on insights from an analysis of the substantive content of over 30 such documents, and make reference to the political and technological changes to which they may relate. We offer an overview of the core actors in the area of digital constitutionalism and a brief exploration of the processes by which their initiatives aim to entrench rights into law and practice. We discuss the changing sites of political and legal intervention, including a more recent focus on domestic and regional initiatives. Finally, we consider what a future research agenda could entail.

Attempts to establish constitutional provisions for the Internet have been promoted since the late 1990s, mainly by the global civil society and intergovernmental organisations. More recently, a new wave of digital constitutionalism has emerged from the nation-state level, and particularly from national parliaments. In order to better understand this process, the article seeks to investigate, from both a theoretical and an empirical perspective, whether and to what extent parliamentary initiatives exhibit specific political features compared to constitutional attempts emerging from other kinds of sources. Further, the study aims to assess if drafting initiatives overlap or, rather, respond in different ways to different constitutional concerns.

This article, conceived as a mainly empirically based contribution, analyses a discursive context composed of 58 documents proclaiming Internet-related human rights drafted and launched by different actors between 1997 and 2015. The article hypothesises that a discourse on Internet-related human rights is being shaped, autonomous from the broader discourse on Internet governance. Therefore, differently from other scholarly works, it does not focus on the many initiatives aimed at defining principles for the governance of the Internet but only on those documents that specifically aim to proclaim Internet-related rights and freedoms. The article, first, analyses the findings of a software-enabled content analysis aimed at (1) identifying the key issues that dominate the discourse, (2) assessing the evolution of the discourse in the last two decades and (3) identifying the thematic priorities of different types of drafting entities. Second, it discusses possible research, policy and legal developments.

The article analyzes one of the earliest intergovernmental initiatives regarding Internet constitutionalism. Based on an analytical framework that combines argumentative discourse analysis with elements from actor–network theory, it assesses the actors and discourses involved in the preparation of an international recommendation on universal access to the Internet, adopted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in 2003. During the contentious negotiations, UNESCO had to find a balance between the divergent positions of its member states and to account for the different levels of technological development amongst them. By retracing the performative and discursive struggles that UNESCO had to face to reach consensus, the article contributes to the general understanding of ideas and practices behind Internet policy making in international settings.

This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to ‘internet freedom’ norms, including privacy, through membership of the Freedom Online Coalition (FOC). Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without comprehensive constitutional human rights or a legislated bill of rights at the federal level; this means that the task of ‘balancing’ what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism’s norms.

This article provides an overview of the key values that we argue should underpin an index of the legitimacy of the governance of online intermediaries. The aim is ultimately to allow scholars to rank the policies and practices of intermediaries against core human rights values and principles of legitimate governance in a way that enables comparison across different intermediaries and over time. This work builds on the efforts of a broad range of researchers already working to systematically investigate the governance of social media platforms and telecommunications intermediaries. In this article, we present our review and analysis of the work that has been carried out to date, using the digital constitutionalism literature to identify opportunities for further research and collaboration.