Constitutional Avenues to Curbing Unrestrained Power of Very Large Online Platforms

Big online platforms are targeted by various regulatory attempts, the last being the DSA. Due to their increasing power, they provide crucial avenues for public discourse, political speech, electoral campaigning and institutional interaction. This working paper provides an overview of the most discussed regulatory approaches in order to evaluate the solutions proposed in the DSA. To this end, this paper offers a preliminary evaluation of platforms’ power. After exploring the existing regulatory framework at the EU level in Section One, Section Two canvasses the constitutional implications stemming from the role of technological platforms. While Section Three outlines the neoliberal approach dominant in the United States, Section Four outweighs the advantages and disadvantages of the use of the third-party effect doctrine. Section Five analyses the European approach to digital platforms’ issues by distinguishing the legislative framework from the relevant case law. A special focus is devoted to the prospects opened by the Digital Services Act, since it appears to incorporate a tacit delegation of state-like powers to VLOPs, thus granting them extremely sensitive functions. Finally, Section Six underscores the importance of fine-tuning the regulation of large platforms with regard to potential constitutional issues which are still unresolved.