Transnational constitutional conflicts in the cyberspace : Google versus the European Union

Abstract

This dissertation investigates the transnational constitutional (or transconstitutional) dimension of recent conflicts between Google and the European Union in the areas of competition, taxation and human rights. It is an exercise of sociology of constitutions whose main theoretical background is provided by the specific sociological version of systems theory developed by Niklas Luhmann. Understanding the constitution as the legal norm that institutionalizes the political form of the modern nation state, the dissertation examines the contemporary debates about the possibilities of expanding constitutionalism in world society. The rise and spread of the Internet has accelerated the global flows of money, technology and information that are increasingly perceived as a challenge to the traditional regulatory powers of nation states and the effectiveness of their constitutions. The acceleration of these flows poses new legal and political (to a certain extent, also constitutional) problems to their regulation and control, as shown by the recent conflicts between Google and the EU. On the one hand, Google may be seen as a sort of “proxy” for the new media sector created by the rise and spread of the Internet, a sector strongly dominated by big transnational corporations that have their origins, headquarters and main business activities in the United States. On the other hand, the European Union represents the most developed attempt until now to expand law and politics, as well as the very idea of constitution, beyond their traditional national settings. The unfolding of the conflicts may indicate, therefore, some limits and possibilities related to the expansion of constitutionalism beyond the state. The EU has taken the initiative to extend the protection of privacy in cyberspace by recognizing a “right to be forgotten” against search engines like Google, as well as by trying to impose some limitations to the power of public and private organizations over global data flows. These promising initiatives set the stage for a broader dialogue on constitutional problems related to the enforcement of fundamental rights and the legitimate exercise of power that are common to different legal orders of world society. Nevertheless, the different ways of dealing with the competition and fiscal aspects of the conflicts with Google also indicate the same limits that are generally attributed to the very project of European integration, showing that the constitutionalization of the economy (or market economy) tends to outpace the constitutionalization of politics (or democratic and redistributive politics).