Digital Platforms as “Private Powers” and Online Censorship

Abstract

American and European scholars are increasingly defining the digital platforms owned by Big Tech as “private powers” and, as far as freedom of expression and information is concerned, as “private censors”. The essay, after recalling the most recent antitrust theories on online platforms in the US and Europe, focuses on the constitutional consequences of this qualification (private power) on the discipline of online censorship, reaching the conclusion that, according to Italian and European constitutional law (at least in continental Europe), while platform users exercise their freedom of expression and information, digital platforms only exercise their freedom of enterprise. As a consequence, digital platforms may be subject to even more penetrating limits to protect freedom of expression and information than traditional media, which still exercise their freedom of information. According to Article 10 ECHR and the caselaw thereof, the State has a “positive obligation” to protect the freedom of expression and information. In the light of those general findings, the essay critically analyzes the proposals of EU Regulations about, respectively, digital services and markets (Digital Services Act and Digital Markets Act).