Fundamental rights, European digital regulation and algorithmic challenge

The theme of the “constitutional” rules for the Internet is presented in this essay as linked with a more recent question relating to the algorithmic decision-making. The reasoning is structured upon two different, although related, topics. Firstly, the choice of the regulatory model best suited for the Internet is considered: hard or soft law. Secondly, the issues of constitutional legitimacy arising from each model are dealt with at the national and European levels. The algorithms are assumed as a test for the resistance or disruptiveness of the traditional legal categories concerning fundamental rights and relation between public powers. They also provide the challenge to design new reasonable paradigms. We will discuss if and how the policy maker should take into account the visibility and the intelligibility of algorithms; furthermore we will consider to what extend a judicial review could be conducted on the predictive analyzes harmful to citizens. The argumentative path ends with a proposal for an European regulation suitable of protecting the rights against the technical risks, but also capable of following up the tension of classic constitutionalism towards substantial equality