Network Governance: Between Competing Models, in Search of a Global Regulation

Author:

Demetrio Scopelliti - PhD in Constitutional Law at the University of Messina, Italy

Introduction

The implications of the relationship between private powers and public powers are once again defining the relations between authority and freedom, a set of relations that recalls the form of state. If the form of state, in essence, defines the constitutional identity of a state, it can be said that there is a certain interrelationship between the constitutional identity of a system and the modus of relations between private powers and public powers.

It is precisely on the basis of these considerations that we intend, in this short essay, to analyze the profound connection between the regulatory models of private platforms and the constitutional identity of the orders, an expression of the main models of regulation described therein.

Our focus will be on the three main systems that are influencing the way individual systems define the relationship between authority and freedom, in the special definition that characterizes the relationship between the authority of public powers and the freedom of private powers: the United States, the European Union and China.

The U.S. Approach

Right from the start, the advent of the Internet had presented itself as a true revolution, a tool with infinite potential, a boundless space in which content of all kinds could be published without any restrictions: the Net had become a boundless prairie, the New England of freedom of expression.

Emblematic of this perception is the 1997 Davos statement at the World Economic Forum: “Governments of the World, weary giants of flesh and steel, I come from Cyberspace, new abode of Mind. On behalf of the future, I ask you, beings of the past, to leave us alone. You are not welcome among us. You have no sovereignty over the places where we meet” (1).

This was a revolutionary statement but one that, in the course of time, proved reckless.

States, today, have tools to regulate the new private powers, starting with control over the “analog” tools that power the network, such as infrastructure, as well as forms of regulation that force platforms to adapt in order to remain in the marketplace (2).

It was precisely that initial ideal movement, coupled with the belief that laces and ties could harness the network’s potential for development, and a good deal of unawareness of the possible implications, led to minimal regulatory choices (3).

This is an initial method that has, for the most part, had spillover effects on how all state actors have defined their approach to the Net, the result of a phase defined as “digital liberalism” (4).

The U.S. approach was characterized from the outset by greater protection for platforms, in particular, through the immunity of social networks for content posted by users within them, guaranteed by Section 230 of the Communications Decency Act (5). Unaccountability for user-published content, in all regulatory regimes, is a cornerstone that prevents platform owners from finding themselves severely restricted and content moderation activity from becoming, in essence, a restriction that degenerates into censorship.

The strategy of digital laissez-faire began, soon enough, to have negative effects: from a vehicle of freedom of expression, the privileged position of platforms in regulating public discourse turned into a threat to the Fundamental Rights of users; so much so that individual states in the U.S. began to think about forms of platform regulation that were more restrictive than state regulation.

Added to this, the geopolitical implications of governance models, which have had significant consequences, as the well-known Supreme Court decision so-called Tik Tok testifies, stating that “this law arises in a context in which “national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess” (6).

The (EU)ropean Approach

The European approach, on the contrary, has a focus on users’ rights. (7)

Evidence of this state of affairs constitutes the General Data Protection Regulation (GDPR), which has already strengthened the prerogatives of the individual before the “digital social formation” to which he or she belongs, to which is now added the European regulation dubbed the Digital Services Act (DSA), whose primary purpose is to ensure that “the fundamental rights protected by the Charter are effectively protected” (8); lastly, the agreement reached between the EU Parliament and Council, on the AI Act, a mighty instrument for regulating artificial intelligence, which pursues the dual objective of “preserving the EU’s technological leadership and ensuring that European citizens can benefit from new technologies developed and operating in accordance with the values, Fundamental Rights and principles of the Union (9)“ cannot go unmentioned.

At least theoretically, numerous constitutional charters recognize the protection of Fundamental Rights as having direct horizontal effects, in relations between subjects, partly as a result of the spread of the well-known theory of Drittwirkung (10).

Originating from the elaboration of the German Constitutional Tribunal in the 1950s, the theory of the horizontal effectiveness of Fundamental Rights has spread to numerous European constitutional courts: this theory, after all, constitutes an application of the meta-principle of dignity of the person, which could not fail to characterize inter privatos relations as well.

Thus, the horizontal effectiveness of Fundamental Rights would represent a limitation on the contractual autonomy of private individuals, and, therefore, an advantageous means of protecting users in their relations with platforms (11). Such an enforceable scope of rights could not find, and indeed has not found, fertile ground in the U.S., where horizontal effectiveness is seen as an undue interference in private autonomy: and in fact, this explains the reason for the reluctance of U.S. jurisprudence to apply the state actor doctrine to entities with a formally private status (12).

In this direction, go the developments determined on the side of EU jurisprudence.

As for the application of the Nice Charter in relations between private parties, starting with the Googl Spain case (13), there is a certain tendency to recognize horizontal effects to certain Fundamental Rights guaranteed therein, perhaps, in the awareness that it may constitute a valid tool available to states and the Union to react in the face of the new private network powers (14).

The Chinese Approach

Quite the opposite are the considerations to be made with regard to the Chinese model, where barriers to market entry exclude most platforms---despite their U.S. origin.

Platforms that operate in the Chinese market, such as TikTok and WeChat are forced to accept particularly restrictive regimes, arranged by the CAC - Cybersecurity Administration of China, in terms of content moderation or user identity verification; the special management share model even hands the government the ability to buy small packages of shares in the platforms and obtain in return veto power over the decisions they make.

Platforms accept this kind of governance to their chances of obtaining licenses for news and online news services.

The regulatory model, as is evident, reflects the Chinese conception of the relationship between authority and freedom, assigning a prominent role to safeguarding the interests of the state, rather than promoting the rights of the individual or freedom of enterprise, as is the case in the European and U.S. models.

Unsustainable competition?

In this context, both U.S. and (EU)ropean jurisprudence get into difficulty in asserting that private entities can affect the individual sphere of individuals to such an extent that the exercise of Fundamental Rights is compromised. The short-circuit, then, occurs from the premise. that the private capacity and contractual nature of the source suffice to govern such phenomena.

The method of "digital liberalism" has had the merit of not placing constraints on the potential of the network and, as a result, letting its potential expand, and into this prairie, contrary to what one might think, has been grafted a network of legal relations with its own rules and sources of law. However, on this space, now, public authorities claim their own authority: the rationale for this new interventionism is to be found in reasons of “internal and external sovereignty” (15).

On the one hand, the search for means of asserting sovereignty over the network represents a question of external sovereignty since the regulatory actors, through domination over the Internet, intend to assert their predominance over other state actors; on the other hand, it is a question of internal sovereignty because of the natural tendency of states to assert themselves as pre-eminent legal orders over other legal orders operating therein (16).

This legal instrument seems to go in the direction of imposing limits on platforms, as much on the level of competition as on that of the relationship with users: if the Union does not represent a leading market in the production of new technologies, the strategy then is to be so in the production of regulations (17), giving rise to a regulatory model that can be imitated in other national experiences (18), under the banner of the so-called “Brussels effect (19)”.

In this sense, however, among the three major global markets-the U.S., the European and the Chinese-has long been engaged in a competition based precisely on the different regulatory model that seems to be affected by three different approaches (20).

As already pointed out, the U.S. approach appears to be based on a market-driven model, based entirely on the free economic initiative of the players and the market’s ability to regulate itself, an approach referred to, not surprisingly, as “techno-optimist”.

The Chinese approach, by contrast, is modeled on the state’s claim to meddle in the autonomy of platforms: a state-driven model, claiming pervasive state control power over platforms, which, on the one hand, bans access to certain platforms, which are considered enemies, and, on the other hand, floods the few permitted platforms with regime propaganda content.

Lastly, the European approach, as is clear from the relevant legislation, is defined as rights-driven, being largely influenced by the European debate on the protection of users’ rights from the private powers of the network: and, indeed, the aforementioned debate on the horizontal application of charters of rights can only be the consequence of this approach.

Now, the risk that may arise from the existence of three different approaches is that a downward competition is triggered among the “digital empires” as to who offers the most advantageous legal regime for platforms: instead of establishing a “vertical battle” between states and tech-companies, a “horizontal battle” occurs between governments, crossing jurisdictions and disregarding physical boundaries (21).

In this context, the publicistic attitude of private powers is also explained by their possession of such economic---and partly political---strength as to shift the object of competition from markets to jurisdictions (22).

Anu Bradford himself considers the EU’s so-called “regulatory capacity” to be partly exhausted, resulting in the so-called Brussels effect that has made the EU a “global regulatory power:” for years, the United States created, China duplicated and Europe regulated. However, penetrating models of regulation like Europe’s raise costs, and risk limiting innovation.

The regulatory burdens placed on platforms may, at some point, make the costs of leaving the European market lower for actors than the costs of staying in it.

Competition among the United States, Europe and China over regulatory models then becomes a “horizontal battle” between governments, which seek to attract platforms by offering more favorable legal regimes.

This competition can lead to a race to the bottom, with increasingly lax rules for platforms; at the same time, the three approaches influence other national regulators and the terms and conditions of the platforms themselves. Model influences replicate geopolitical patterns, so that, for example, countries close to China are making use of statist models of platform regulation.

The question must be asked whether a competition between regulatory models is not being triggered in which the market is not the platforms but the states, competing for the regulatory regime most advantageous to private powers. And for that matter, the existence of horizontal competition between digital regulatory empires today is a reality to be reckoned with, which is accompanied by vertical competition between the same empires and big tech companies.

In February 2025, Kaplan, Meta’s Chief of Global Affairs, highlighted the problems that the European regulatory model is deploying, slowing down technological innovation in Europe and, at the same time, limiting its growth, so much so that some companies are faced with the question of whether to adapt to the European regulatory model or not to enter that market (23).

In this context, the concept of “digital constitutionalism” is proposed as a response to these new challenges, with the goal of extending constitutional guarantees to network giants. As has been significantly put in light, the Net resembles a “modern Hydra,” whose heads, once severed, reproduce themselves (24).

For the assertion of rights and limitation of powers on the Net to be effective, it must, then, be global in scope, as the cross-border nature of platforms renders regulations limited to individual states or regions ineffective. As Prof. Cassese pointed out, in a recent contribution this August in Il Foglio, it is also true that introducing global regulators means agreeing states on principles, values and rules that are strongly characteristic of individual national constitutional traditions (25).

In conclusion, a global governance model, built on cooperation among states, could be the most effective solution to regulate digital platforms and ensure uniform protection of Fundamental Rights at the planetary level, but it is necessary to succeed in making the different approaches coexist, which represent nothing more than the individual constitutional identities of states.

References

(1) Barlow J.P., "A Declaration of the Independence of Cyberspace," Davos, February 8, 1996.

(2) Pollicino O., "Regulation and Technological Innovation in the “Network Order,” paper at the XXXIX Annual. Conference of the Italian Association of Constitutionalists, Salerno, November 15-17, 2024.

Available at http://www.associazionedeicostituzionalisti.it/images/convegniAnnualiAIC/2024_Salerno/Oreste_Pollicino.pdf.

(3) See De Gregorio G., "The rise of digital constitutionalism in the European Union," in International Journal of Constitutional Law, vol. 19, 1, 2021,

41 ff.

(4) Ibid.

(5) “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

(6) TikTok Inc, 604 U. S. 15 (2025).

(7) See Balaguer Callejon F., "Perspectives on Constitutionalism and Europe. The Algorithm Constitution and the Decisive Crisis of the European Integration Project in Nomos," 2, 2022, 24 ff.

(8) Regulation (EU) 2022/1925, Recital No. 109.

(9) Proposed Regulation of the EU Parliament and Council 2021/0106.

(10)10 The literature on this subject is endless. Ex multis, we recall N. Luhmann, Fundamental Rights as Institutions, Bari, 2002, Alpa AA.VV. G., Conte G. (eds.), "Diritti e libertà fondamentali nei rapporti contrattuali," Giappichelli, Torino, 2018, Ferrari F., "Vecchi e nuovi problemi in tema di efficacia diretta orizzontale della Carta," in Federalismi, 10, 2019, 25 ff.

(11) On this point, Pollicino O., "The horizontal effectiveness of fundamental rights under the Charter. The jurisprudence of the Court of Justice on digital privacy as a privileged observatory," in MediaLaws, 3, 2018, 138 ff., Navarretta E., Constitution, European and Private Law. Effectivity and Drittwirkung rethinking legal complexity, Turin, 2017.

Frantziou E., "The Horizontal Effect of the Charter: Towards an Understanding of Horizontality as a Structural Constitutional Principle", in Cambridge Yearbook of European Legal Studies, 22, 2022, 210 ff, Gardbaum S., "The 'Horizontal Effect' of Constitutional Rights," in Michigan Law Review, 102, 2003, 390 ff., Teubner G., "Horizontal Effects of Constitutional Rights in the Internet: A Legal Case on the Digital Constitution," in The Italian Law Journal, 1, 2017, 10 ff.

(12) We refer to Bassini M., "Freedom of Expression and Social Networks, Between New 'Public Spaces' and “'rivate Powers'." Points of comparison, cit.

(13) On the Google Spain case, AA.VV. G. Resta, V. Zeno-Zencovich, "Il diritto all’oblio su Internet dopo la sentenza Google Spain," Roma Tre Press, Rome, 2015, Pizzetti F., "La decisione della Corte di Giustizia sul caso Google Spain: più problemi che soluzioni," in Federalismi, 1, 2014, 1 ff.

(14) For a more in-depth analysis, see Pollicino O., "The horizontal effectiveness of fundamental rights under the Charter. The case law of the Court of Justice on digital privacy as a privileged observatory," in MediaLaws, 3, 2018, 10 ff.

(15) Finocchiaro G.,"Digital Sovereignty," cit.

(16) The reference is to the well-known theory of the plurality of legal systems stated by Romano S., "L’ordinamento giuridico," Sansoni, Florence, 1951.

(17) Brandimarte L., Pecchi L., Piga G., "Big Tech Firms: slaves to laws in order to be free?," in Public Law, 3, 2021, 820 ff. consider the European Union “innovative in regulatory approaches to the technological and digital world.”

(18) Finocchiaro G., "Digital Sovereignty" cit.

(19) On the ability of the European Union to influence the regulatory models of other countries, see Bradford A., "Brussels Effect. How the European Union regulates the world," FrancoAngeli, Milan, 2021.

(20) On the reconstruction of the three approaches, see Brdford A., "Digital Empires," Oxford University Press, Oxford, 2023, 12 ff. In this sense, the A. makes clear how, despite the EU’s pursuit of a leadership position in digital regulation, the existence of at least three different regulatory models has triggered a real competition among regulators.

On a different ridge, moreover, one can recall the already extensive literature on the difference of approaches in the regulation of artificial intelligence: Chiti E., Marchetti B., "Divergent? The Strategies of the European Union and the United States on Artificial Intelligence," in Journal of Market Regulation, 1, 2020, 29 ff., Marchetti B., Parona L., "The Regulation of Artificial Intelligence: the United States and the European Union in Search of a Possible Balance," in DPCE online, 1, 2022, 237 ff., Finocchiaro G., "The Regulation of Artificial Intelligence," in Quarterly Journal of Public Law, 4, 2022,1085 ff.

(21) A. Bradford, "Digital Empires," cit.

(22) In this sense, too, Raffiotta E.C., "From 'self-regulation' to 'over-regulation' in the digital sphere: how (and why) of a necessary change of perspective," in Osservatorio sulle fonti, 2, 2023, 245 ff.

(23) Cerasa C., "Why Trump is betting on Meloni." Exclusive interview with Joel Kaplan, in Il Foglio, February 28th, 2025.

(24) Froomkin A. M., "The Internet as a Source of Regulatory Arbitrage," in Kahin B., Nesson C. (eds.), Borders in Cyberspace, 1997, 15 ff.

(25) Cassese S., "The broken world," in Il Foglio, August 3rd, 2024.

Biography of the Guest Expert

Born in 1996 and raised in Calabria, Demetrio Scopelliti earned his law degree from LUISS Guido Carli University in Rome (Italy) in 2020. During his studies, he spent a semester abroad through the Erasmus programme at the Aristotle University of Thessaloniki.

In 2021, he was a student and scholarship recipient at the Silvano Tosi Seminar on Parliamentary Studies. That same year, he began his PhD in Constitutional Law at the University of Messina (Sicily, Italy), where he completed his doctorate in January 2025 with a dissertation on "Regions and the Welfare State." During his doctoral studies, he interned at the Constitutional Court of Italy.