Digital Constitutionalism and Consumer Protection

Abstract Digital constitutionalism has traditionally focused on limiting private power in the digital realm in a constitutionalist manner, focusing on the public role platforms fulfil. However, the New Social Media is characterized by increased commercialization of the digital realm through content monetization structures. In light of the commercial nature of the digital realm, it makes sense to turn to consumer protection in the search for digital constitutionalism. Consumer protection has a track record of limiting private power through mandatory limitations in the freedom of contract, and a strong enforcing power regarding private entities, which is relatively absent in fundamental rights law. In levelling the power imbalance between consumer and platform, consumer protection law fits the paradigm of digital constitutionalism well. Aside from its enforcing power, consumer protection law has gained recognition as a fundamental right in Article 38 of the Charter for Fundamental Rights of the European Union, underlining its normative importance. Such recognition reflects the central role the European Union has given to consumer protection in its law and policy. This chapter investigates the role consumer protection law can take in the search for digital constitutionalism, proposing that consumer protection law can lead to a new facet of digital constitutionalism: ‘commercial constitutionalism’.