Using Digital Constitutionalism to Curb Digital Populism

—Emilio Peluso Neder Meyer, Federal University of Minas Gerais and National Council for Scientific and Technological Development, Brazil, and Fabrício Bertini Pasquot Polido, Federal University of Minas Gerais, Brazil

On January 6, 2021, the world watched on live stream the result of years and years of political extremism being dumped into American society. Radicalized supporters of Donald Trump, most of them QAnon members, stormed the Capitol under revolutionary chants, “Make America Great Again” caps and confederate flags. Some of them specifically targeted the Congressmen who were in the process of certifying the 2020 election results. The actions resulted in the death of four people.

This episode was just one of the many expressions of how dangerous digital populism can be. Digital populism is here referred to as the use of internet platforms to attack democratic constitutional institutions. Due to the radicalization of online political discourse, especially under the guise of a supposedly limitless freedom of expression, ungoverned digital platforms fostered an already aggravated polarization, which has a lot to do with the infrastructure of these business models.

In the case of former president Donald Trump, who had his account suspended by Facebook, the company’s Oversight Board recommended that it should not only clarify the requirements of the sanctions it applied, but also that it restrict his suspension and provide more transparency. The Oversight Board also indicated that publications could be targeted if they can propel violence and especially in the case of accounts that belong to heads of state, as well as other users with a broad range of followers. The platform limited Trump’s account suspension for up to two years, but was not convincing in offering full transparency.

It is necessary to develop ways to properly moderate content online, especially in the case of public figures and political leaders. However, one must also uncover the roots of the core issues related to the existing situation of content governance on the internet. The analysis of the way in which platforms profit via digital populism  represents a crucial step towards better content oversight, especially if governed by what we will call digital constitutionalism.

Digital populism as a tool to engineer chaos

In The People vs Tech, Jamie  Bertlett made a prediction: “any new ‘populist’ party formed in the coming years will promise to introduce more referendums and digital voting for members. They will say that it’s ordinary people speaking against the establishment.” Much like Donald Trump, Jair Bolsonaro, Matteo Salvini and Viktor Orban, this breed of digital populist politicians has realized that social media is a strategic, real time-driven and crucial tool in their paths toward power and to its maintenance.

Bartlett recognizes that the pillars of democracy have been gradually weakened by the tech revolution. This analysis shall be counterbalanced by theories arguing that previous asymmetric media structures also benefited far-right populists. Regardless, the lack of governmental oversight and the deliberate demise of law enforcement activities by states increase already existing inequalities and further divide societies.

Fear mongering was steadily fostered by Donald Trump on Fox News (which was then replicated on social media) by displaying imagery of a caravan of migrants heading towards the southern border of the United States. Viktor Orban supporters described immigrants as violent and brutal, and as aiming at degrade Hungary’s traditional values. His government envisaged controlling social media both for biased content against conservatives and for people who could frustrate COVID-19 measures. During the last presidential elections, Brazilian then-candidate Jair Bolsonaro extensively used social media to reach potential voters and imbue them with fear of the supposed corruption of children with what he called “gay kits” in schools and baby bottles shaped like a penis.

Once in power, Bolsonaro deepened polarization through digital platforms, preferring them instead of traditional media outlets, due to the alleged “direct channel” with Bolsonaro’s supporters and partisans. Even COVID-19 pandemic fighting measures without a scientific basis were defended online, such as the dissemination of viral posts and videos resorting to treatments already discredited by health authorities, including the World Health Organization. Such acts prompted a legislative investigative committee to subpoena representatives in Brazil of Twitter, Facebook and Instagram to explain why Bolsonaro’s accounts were not overseen. Congress members in Brazil wanted to know the reason why the president was not banned from the platforms, and did not have his posts removed by the companies.

According to empirical research on The New Face of Digital Populism in Europe, data “suggests that many supporters of populist parties have extremely low levels of trust and confidence in mainstream political institutions”. Therefore, digital campaigns are now specially tailored to meet micro-targeted users with the purposes of swaying voters, creating political upheaval, provoking mistrust and inciting physical and digital attacks.

Surveillance capitalism enables a lack of public discourse

Digital platforms providing “free” services to the public in general are usually monetized by means of an attention economy model: their email, social networking and video applications are free for all, as long as users are willing to be bombarded with customized ads, carefully tailored to suit their users’ needs. Shoshana Zuboff defines this latest stage of the capitalistic waves as surveillance capitalism. It consists of a sophistication of informational capitalism, already envisioned by Manuel Castells in the 1990s, with a perverse twist, the fact that personal data is constantly (and gratuitously) extracted from users in order to feed algorithms.

These algorithmic business models not only allow for strategic and individualized publicity to reach each of its users, but it also creates filter bubbles of public discourse. Users of social networks and publicity-based business models are subjected to a curation of content that usually limits posts to match their own taste, political leaning, interests, and opinions. A highly digital customization of content also expropriates individual and collective politics, according to Antoinette Rouvroy.

Whenever a controversial tweet, post or video is shared and discussed by several social “bubbles”, even across opposing sides of the political spectrum, a curious phenomenon occurs: these contents reach popularity on all groups, but due to completely different reasons. The more shares, reactions, and views, the more a content is perceived as relevant and thus is suggested to other users by the algorithm. Applications and platforms such as Twitter, Facebook and YouTube thrive on those situations. Over the last decade, not only did GAFAM’s (Google, Apple, Facebook, Amazon and Microsoft) market capitalization grew exponentially, but these companies are now among the top 10 economies in the world.

Surveillance capitalism works (especially for shareholders), but its business model damages public discourse. It diminishes meaningful and nuanced interaction online, at the same time as it creates a radicalization pipeline on its platforms.

The great dispersion and the challenges that lie ahead

The tendency of President Biden’s administration to interfere and imbue responsibility on digital platforms prompted stronger responses from Twitter, Facebook and Google to the Capitol events. While still in office, Donald Trump’s social media accounts were either suspended or banned, as well as many of its supporters’ visceral profiles (over 70,000). De-platforming Trump and conspiracy theorists accounted for a reduction of 73% of misinformation online regarding the American elections, according to estimates. Most recently, Facebook announced it would remove recommendations for political and social groups globally.

The former American president failed at creating his own platform. His supporters quickly migrated to Parler, the self-entitled “free speech social network”, in which content moderation is peer-to-peer based. AWS, Amazon’s cloud computing service that hosted Parler online, then removed Parler from its servers on the basis of a violation of its terms of service. In Brazil, Bolsonaro’s supporters have largely migrated to Telegram, a Russian platform with no clear ownership. This movement can affect the 2022 elections.

Concerned with the increasing content moderation of traditional platforms, extremists migrated to MeWe, Gab, 4chan, Reddit and Telegram, among others. These applications present further challenges: How to properly monitor, account for and analyze what goes on in them? With end-to-end encryption and conversations, including chat groups, external observers are left to wonder and can only guess about trends and tides of public discourse online. Filter bubbles of the digital infrastructure turn these public forums into private niches of hatred, conspiracy theory, confirmation bias, and inconspicuous political collusion.

How can fragmentation curb digital populism?

Digital populism cannot thrive on other platforms in the same way it did on the traditional ones. The pulverization of radicalized users throughout Parler, MeWe, Gab and Telegram, among other dark corners of the web, does not provide the same engagement and audience that Twitter, Facebook and YouTube do.

This is due to the fact that radical extremists benefited from both positive and negative engagement. Dissonance actually promoted tweets to notoriety. A continuum of comments and reactions (not just “like”, “love” and “laugh”, but also “sad”, “wow” and “mad” emoticons) on Facebook posts contributed to better algorithmic curation, despite the content that is shared – what Zuboff calls radical indifference.

The new platforms chosen by the alt-right, overall, are either user-to-user (Telegram), or well-known by their already radicalized communities (Parler, Gab), which tend to provide for less internal controversy and discord. In this scenario, it is harder for posts to go viral, for content producers to reach larger audiences and, most of all, to radicalize center-leaning users online. Unlike YouTube and Twitter, in which a simulacrum of a public square allowed for audiences to be disputed and seduced, a fragmented set of applications will prove harder to manage and coordinate by fascist populist leaders. One caveat must be made: user-to-user communication on WhatsApp was effectively explored by Bolsonaro supporters during the 2018 elections.

Digital constitutionalism

Günther Teubner argued that the structure of constitutionalism provides for the autonomization of social systems at the same time that it invokes their self-limitation. That is the reason why governance can be fostered by a state archetype bounded by political legitimacy, spheres of actions equivalent to fundamental rights and decisions based on public interest. In other words, governance is not a state prerogative.

Instead of simply demanding state control over each and every operation inside social media – which would demand tremendous effort and raise the risk of excessive control – digital constitutionalism could act as a prototype of governance for each system that has public and transnational interest, which is the case of almost any social media based on the internet. However, as already mentioned, surveillance capitalism empowered big techs with tools that several totalitarian political models envy. The absence of civil society and user participation in the governance procedures of digital platforms governance could call for direct state intervention via, for instance, judicial review.

Facebook’s Oversight Board offers an interesting example. The platform manages to apply sanctions to users that violate its values of voice, authenticity, protection, privacy and dignity. The board, integrated by members of civil society, oversees the platform’s sanction rulings.

So far, there are no clear procedures by which someone could take part in the Oversight Board, or procedural provisions to allow, for instance, a human rights NGO to appoint a human rights specialist to serve on the Oversight Board, notwithstanding the self-regulatory rules proposed by Facebook for that purpose. All of those loopholes should call for state interference to the extent that an oversight mechanism is likely open enough to be improved in terms of governance itself.

All things considered, to conceive of a digital constitutionalism means that there are ways to curb the proliferation of digital populism. In times of pandemic, for instance, heads of state such as Jair Bolsonaro have used social media in ways that have direct effects on peoples’ right to health. There are plenty of reasons to consider that platforms and, further, state agencies cannot remain silent.

Suggested citation: Emilio Peluso Neder Meyer and Fabrício Bertini Pasquot Polido, Using Digital Constitutionalism to Curb Digital Populism, Int’l J. Const. L., Jul. 10, 2021, at: http://www.iconnectblog.com/2021/07/using-digital-constitutionalism-to-curb-digital-populism/