Biography

Giovanni De Gregorio is postdoctoral researcher working with the Programme in Comparative Media Law and Policy at the Centre for Socio-Legal Studies. Within the framework of the ERC ConflictNet project, his research focuses on content moderation and artificial intelligence; hate speech and disinformation in conflicts; digital policy in the global south. His research interest deals with constitutional law, human rights, Internet law, privacy and data protection law.

He completed his PhD in Constitutional Law at the University of Milano-Bicocca. His doctoral study has investigated the rise of European digital constitutionalism as a reaction and strategy against the predominance of digital private normativities. By focusing on the intersection between European constitutionalism and technology with a transatlantic comparative perspective, the research describes the rise of digital private powers defining their standards of protection while competing with the normative order of European constitutional law which aims to protect fundamental rights and democratic values in the algorithmic society. Part of this research, which has been published in the International Journal of Constitutional Law, has been awarded the Leonardo da Vinci Price issued by the Conference of Italian University Rectors for the best publication among Italian young scholars in legal studies.

His research has been published in edited books and international journals, in particular, the International Journal of Constitutional Law, Computer Law and Security Review, European Journal of Legal Studies, International Journal of Communication. He edited two books with Hans W. Micklitz and others (eds), Constitutional Challenges in the Algorithmic Society, forthcoming (Cambridge University Press 2021); and with Oreste Pollicino, Blockchain and Public Law: Global Challenges in the Era of Decentralisation, forthcoming (Edward Elgar 2021). He is also member of the editorial board of the law reviews MediaLaws and Diritti Comparati. He is a reviewer for the International Journal of Constitutional Law (ICON); Computer Law and Security Law Review (CLSR); European Journal of Comparative Law and Government.

During these years, Giovanni has been Academic Fellow at Bocconi University, non-resident legal research for Columbia Global Freedom of Expression and visiting fellow at the Center for Cyber Law and Policy at the University of Haifa. He is also member of global academic and policy networks such as the Centre for AI and Digital Policy (CAIDP); the Global Internet Governance Academic Network (GigaNet), the Global Digitial Human Rights Network (GDHRN); the Dynamic Coalition on Platform Responsibilities at the Internet Governance Forum; the IACL Research Group on “Algorithmic State, Society and Market – Constitutional Dimensions”; and the Internet and Jurisdiction Policy Network.

Twitter: @G_De_Gregorio

Publications

Selected publications

  • G De Gregorio, 'The Rise of Digital Constitutionalism in the European Union' (2021) International Journal of Constitutional Law
    DOI: https://doi.org/10.1093/icon/moab001
    In the last twenty years, the policy of the European Union in the field of digital technologies has shifted from a liberal economic perspective to a constitution-oriented approach. This change of heart has resulted primarily from the rise of the information society which has created not only new opportunities but also challenges to fundamental rights and democratic values. Even more importantly, this technological framework driven by liberal ideas has empowered transnational corporations operating in the digital environment to perform quasi-public functions on a global scale. This article analyzes the path and the reasons that have led the European Union to enter a new phase of modern constitutionalism (i.e. digital constitutionalism). The primary goal of this article is to describe the characteristics of this new constitutional phase opposing platform powers, and to outline the potential evolution of European digital constitutionalism in the global context.
  • N Elkin-Koren, G De Gregorio and M Perel, 'Social Media as Contractual Networks: A Bottom-up Check on Content Moderation' (2021) Iowa Law Review (forthcoming)
    Is there any limit to social media platforms' ostensibly unfettered discretion to indefinitely suspend users' accounts or remove content? The fierce debate over the exercise of discretionary power by platforms to terminate users' accounts and remove content has primarily focused on free speech ramifications and the constitutional restraints on top down legal interventions. While suspension and removal decisions by platforms often trigger questions situated in public law, they also raise important challenges to private law. Cutting the livelihood of small businesses, independent creators and political activists, termination and removal decisions may carry irreparable financial and reputational harms. When moderating content, digital platforms exercise discretionary powers conferred under boilerplate contracts defining their Terms of Service (ToS). So far, platforms have successfully invoked contractual provisions as a shield against lawsuits of users claiming that unjustified suspension was a breach of contract. This Article argues that courts have often erroneously dismissed users’ claims because they have misinterpreted the agreement between platforms and users as dyadic, namely involving two contracting parties. The interpretation of such contracts as establishing bilateral/vertical obligations only, undermines the true intention of the contracting parties and overlooks the plethora of rights and obligations created by such contracts to multiple stakeholders. The purpose of this Article is to highlight this blind spot in current contractual analysis and offer courts an interpretive framework for addressing contractual claims involving digital platforms. We argue that platforms' contracts should be interpreted as contractual networks. This analytical framework is based on a growing body of literature which focuses on interrelated contractual obligations among independent agents who share a common goal. Users in social media platforms, we argue, collaborate in creating the shared economic and social value generated by social media. Byframing the contractual relationship between platforms and users as a contractual network, courts are called to consider this complexity and the extent to which removals or terminations meet the contractual expectations of the networks' members and advance their common goal. This approach to contract interpretation may facilitate a bottom-up check on content moderation via private ordering, thus increasing platforms’ accountability. Specifically, if users could effectively raise contractual claims against platforms and hold them accountable for capricious, biased, or unfair removal decisions, they could pressure platforms to align content moderation policies with the shared interests of the community of users. To that end, contract law could empower users by offering a decentralized and diversified check over the platforms’ content moderation practices. Holding platforms accountable for content moderation practices via private ordering could also facilitate more diversity and explora- tion, enabling the emergence of different models for moderating dig- ital content and promoting a more pluralist public discourse.
  • G De Gregorio and N Stremlau, 'Internet Shutdowns and the Limits of the Law' (2020) International Journal of Communication 4224
    Internet shutdowns are on the rise. In the past few years, an escalation of this blunt censoring practice has affected different regions of the world, particularly Africa and Asia. Scholars and advocates have proposed no substantive solutions to effectively address Internet shutdowns, and analysis has largely been limited to examining the negative effects through data about their frequency, duration, and economic costs. This article attempts to move beyond the polarized debate between “keep it on” and “shut it off” to explore how there can be more transparency around decision-making processes behind Internet shutdowns. We also discuss the limits of law when it comes to the imposition and implementation of shutdowns. Shutdowns tend to be imposed somewhat arbitrarily with little process. Bringing back legal arguments into the exploration of the justifications around shutdowns may make the use of shutdowns less frequent and more limited, when they do occur.

Edited Book (2)

G De Gregorio, H W Micklitz, O Pollicino and A Reichman and others (eds), Constitutional Challenges in the Algorithmic Society (Cambridge University Press 2021) (forthcoming)

Journal Article (9)

N Elkin-Koren, G De Gregorio and M Perel, 'Social Media as Contractual Networks: A Bottom-up Check on Content Moderation' (2021) Iowa Law Review (forthcoming)
Is there any limit to social media platforms' ostensibly unfettered discretion to indefinitely suspend users' accounts or remove content? The fierce debate over the exercise of discretionary power by platforms to terminate users' accounts and remove content has primarily focused on free speech ramifications and the constitutional restraints on top down legal interventions. While suspension and removal decisions by platforms often trigger questions situated in public law, they also raise important challenges to private law. Cutting the livelihood of small businesses, independent creators and political activists, termination and removal decisions may carry irreparable financial and reputational harms. When moderating content, digital platforms exercise discretionary powers conferred under boilerplate contracts defining their Terms of Service (ToS). So far, platforms have successfully invoked contractual provisions as a shield against lawsuits of users claiming that unjustified suspension was a breach of contract. This Article argues that courts have often erroneously dismissed users’ claims because they have misinterpreted the agreement between platforms and users as dyadic, namely involving two contracting parties. The interpretation of such contracts as establishing bilateral/vertical obligations only, undermines the true intention of the contracting parties and overlooks the plethora of rights and obligations created by such contracts to multiple stakeholders. The purpose of this Article is to highlight this blind spot in current contractual analysis and offer courts an interpretive framework for addressing contractual claims involving digital platforms. We argue that platforms' contracts should be interpreted as contractual networks. This analytical framework is based on a growing body of literature which focuses on interrelated contractual obligations among independent agents who share a common goal. Users in social media platforms, we argue, collaborate in creating the shared economic and social value generated by social media. Byframing the contractual relationship between platforms and users as a contractual network, courts are called to consider this complexity and the extent to which removals or terminations meet the contractual expectations of the networks' members and advance their common goal. This approach to contract interpretation may facilitate a bottom-up check on content moderation via private ordering, thus increasing platforms’ accountability. Specifically, if users could effectively raise contractual claims against platforms and hold them accountable for capricious, biased, or unfair removal decisions, they could pressure platforms to align content moderation policies with the shared interests of the community of users. To that end, contract law could empower users by offering a decentralized and diversified check over the platforms’ content moderation practices. Holding platforms accountable for content moderation practices via private ordering could also facilitate more diversity and explora- tion, enabling the emergence of different models for moderating dig- ital content and promoting a more pluralist public discourse.
G De Gregorio and C Goanta, 'The Influencers Republic: Monetising Political Speech on Social Media' (2021) German Law Journal (forthcoming)
Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters (e.g. ECHR). Unlike commercial speech which, in some cases, does not enjoy constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech (e.g. regulation) would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.
G De Gregorio, 'The Rise of Digital Constitutionalism in the European Union' (2021) International Journal of Constitutional Law
DOI: https://doi.org/10.1093/icon/moab001
In the last twenty years, the policy of the European Union in the field of digital technologies has shifted from a liberal economic perspective to a constitution-oriented approach. This change of heart has resulted primarily from the rise of the information society which has created not only new opportunities but also challenges to fundamental rights and democratic values. Even more importantly, this technological framework driven by liberal ideas has empowered transnational corporations operating in the digital environment to perform quasi-public functions on a global scale. This article analyzes the path and the reasons that have led the European Union to enter a new phase of modern constitutionalism (i.e. digital constitutionalism). The primary goal of this article is to describe the characteristics of this new constitutional phase opposing platform powers, and to outline the potential evolution of European digital constitutionalism in the global context.
G De Gregorio, 'Democratising Online Content Moderation: A Constitutional Framework' (2020) 36 Computer Law and Security Review 105374
DOI: https://doi.org/10.1016/j.clsr.2019.105374
Freedom of expression is one of the cornerstones on which democracy is based. This non-exhaustive statement firmly clashes with the troubling evolution of the algorithmic society where artificial intelligence technologies govern the flow of information online according to opaque technical standards established by social media platforms. These actors are usually neither accountable nor responsible for contents uploaded or generated by the users. Nevertheless, online content moderation affects users’ fundamental rights and democratic values, especially since online platforms autonomously set standards for content removal on a global scale. Despite their crucial role in governing the flow of information online, social media platforms are not required to ensure transparency and explanation of their decision-making processes. Within this framework, this work aims to show how the liberal paradigm of protection of the right to free speech is no longer enough to protect democratic values in the digital environment, since the flow of information is actively organised by business interests, driven by profit-maximisation rather than democracy, transparency or accountability. The role of free speech is still paramount. However, the challenges raised by the algorithmic society leads to focus on enhancing the positive dimension of this fundamental right by introducing new users’ rights and transparency and accountability obligations for social media to inject democratic values in the digital environment.
O Pollicino, G De Gregorio and L Somaini, 'Europe at the Crossroad: The Regulatory Conundrum to Face the Raise and Amplification of False Contents Online' (2020) 19 The Global Community Yearbook of International Law and Jurisprudence 319
DOI: 10.1093/oso/9780197513552.001.0001
In the last couple of years, the dissemination of false content online has raised serious concerns worldwide. As a result, states have attempted to tackle disinformation in different ways. Regulating disinformation requires solving the following dilemma: How and to what extent can we regulate (false) speech? It is not by chance that democratic and authoritarian countries have followed different regulatory paths in this field. The social media landscape has contributed to increasing the complexity in the fight against disinformation. The pandemic has then amplified the challenges coming from the spread of false content. This work aims to outline anti-disinformation trends in Europe. By focusing on Europe as one of the most interesting areas of the world to analyse regulatory attempts concerning disinformation, the primary goal of this work is to provide a nuanced approach in this field, going beyond the mere description of supranational and legislative regulation and looking at the European regulatory framework under a multilevel constitutional perspective.
G De Gregorio and N Stremlau, 'Internet Shutdowns and the Limits of the Law' (2020) International Journal of Communication 4224
Internet shutdowns are on the rise. In the past few years, an escalation of this blunt censoring practice has affected different regions of the world, particularly Africa and Asia. Scholars and advocates have proposed no substantive solutions to effectively address Internet shutdowns, and analysis has largely been limited to examining the negative effects through data about their frequency, duration, and economic costs. This article attempts to move beyond the polarized debate between “keep it on” and “shut it off” to explore how there can be more transparency around decision-making processes behind Internet shutdowns. We also discuss the limits of law when it comes to the imposition and implementation of shutdowns. Shutdowns tend to be imposed somewhat arbitrarily with little process. Bringing back legal arguments into the exploration of the justifications around shutdowns may make the use of shutdowns less frequent and more limited, when they do occur.
O Pollicino and G De Gregorio, 'A Constitutional-Driven Change of Heart. ISP Liability, AI and the Digital Single Market' (2019) The Global Community Yearbook of International Law and Jurisprudence 237
The role of online intermediaries has evolved since the adoption of the e-Commerce Directive in 2000. The implementation of artificial intelligence technologies in online content management has challenged the original passive role of online service providers in relation to third-party content. As a result, the EU strategy has shifted from a liberal approach to ensure the development of new digital services without overwhelming ISPs of monitoring and removal obligations, to the regulation of online content management activities. The threats for fundamental rights deriving from opaque decision-making processes of online content have overcome the traditional narrative of ISPs’ freedom to conduct their business. The result of this process has led to a new regulatory phase within the framework of the Digital Single Market strategy.
G De Gregorio, 'From Constitutional Freedoms to Powers: The Law of the Platforms' (2019) European Journal of Legal Studies 65
The rise of the algorithmic society has led to a paradigmatic shift where constitutional liberties granted to online platforms have turned into newfound powers. This situation is not only the result of new technological developments but also of the recognition of the online platforms' exclusive role in implementing an online public regulatory framework, as the cases of content management and the right to be forgotten online illustrate. Behind such delegated competences, online intermediaries can exercise sovereign powers over their online spaces through instruments based on private law and technology. In this scenario, the liberal constitutional approach adopted in relation to online platforms has played a crucial role in increasing the possibilities for these actors to affect individuals' fundamental rights. This work will address two potential solutions to limit the extent of such private powers from a (digital) constitutional law perspective. The first will focus on the introduction of new user rights whose aim is to regulate online platforms' decision-making processes and provide new legal remedies against such decisions. The insertion of new procedural rights in the online environment, including, for example, the obligation to explain the reasons behind platforms' decisions, would be appropriate in order to reduce the opacity of automated decision-making processes and foster human awareness in the algorithmic society. The second solution will question the doctrine of horizontal effect in order to establish a mechanism to enforce constitutional rights vis-à-vis online platforms that operate in a global framework.
G De Gregorio, 'Expressions on Platforms. Freedom of Expression and ISP Liability in the Framework of the European Digital Single Market' (2018) European Competition and Regulatory Law Review 203
DOI: https://doi.org/10.21552/core/2018/3/7
Freedom of expression online and Internet Service Providers are closely connected. Consequently, when dealing with the regulation of their liability, it is necessary that public actors take deeply into consideration how the ISP’s liability regime affect fundamental rights. Recently, in the framework of the European Digital Single Market Strategy, the EU Commission have issued two proposals which would impact on the ISP’s system of liability in Europe and, as a result, on freedom of expression. Hence, it is necessary to analyse the potential drawbacks, providing, from a comparative perspective, alternative solutions which comply with the EU constitutional framework.

Chapter (3)

O Pollicino and G De Gregorio, 'The Principle of the Rule of Law in the Regulation of AI' in P G Mexía and F P Bes (eds), Artificial Intelligence and Law (Wolter Kluwer 2021) (forthcoming)
This work aims to examine the challenges for the rule of law coming from new digital technologies. The primary goal of this work is to define the potential remedies to this situation from a constitutional law perspective. We argue that constitutional law already provides instruments to address this situation, especially when we look at the horizontal application of fundamental rights. Besides, constitutional law has also the ability to trigger a positive obligation for States to intervene for remedying threats for fundamental rights. The first part of this work examines the evolution of the rule of law in light of the digital environment and the evolution of new AI technologies. The second part focuses on how the changing landscape of the public sphere and the challenges for privacy and data protection in the information society raised challenges for the principle of the rule of law. The third part outlines the potential constitutional remedies and approaches which can ensure the protection of the principle of the rule of law in the information society.
G De Gregorio and S Ranchoras, 'Breaking Down Information Silos with Big Data: A Legal Analysis of Data Sharing' in J Cannataci, V Falce and O Pollicino (eds), Legal Challenges of Big Data (Edward Elgar 2020)
In the digital society, individuals play different roles depending on the situation they are placed in: they are consumers when they purchase a good, citizens when they vote for elections, content providers when they post information on a platform, and data subjects when their data is collected. Public authorities have thus far regulated citizens and the data collected on their different roles in silos (e.g., bankruptcy registrations, social welfare databases), resulting in inconsistent decisions, redundant paperwork, and delays in processing citizen requests. Data silos are considered to be inefficient both for companies and governments. Big data and data analytics are disrupting these silos allowing the different roles of individuals and the respective data to converge. In practice, this happens in several countries with data sharing arrangements or ad hoc data requests. However, breaking down the existing structure of information silos in the public sector remains problematic. While big data disrupts artificial silos that may not make sense in the digital society and promotes a truly efficient digitalization of data, removing information out of its original context may alter its meaning and violate the privacy of citizens. In addition, silos ensure that citizens are not assessed in one field by information generated in a totally different context. This chapter discusses how big data and data analytics are changing information silos and how digital technology is challenging citizens’ autonomy and right to privacy and data protection. This chapter also explores the need for a more integrated approach to the study of information, particularly in the public sector.
G De Gregorio, 'Fighting Terrorism Online: Censorship, Platforms and Freedom of Expression Across the Atlantic' in G De Minico and O Pollicino (eds), Virtual Freedoms – Terrorism – The Law (Routledge 2020)
DOI: https://doi.org/10.4324/9781003091561
Censorship is not a new phenomenon. History shows that freedom of expression has been subject to restrictions to control the dissemination of information and ideas. In particular, terrorism is one of the predominant examples demonstrating how public actors justify limitations to the flow of information across society to avoid the spread of propaganda and violent values. The relationship between censorship and terrorism is of particular concern when the debate is framed in the digital environment. The case of live streaming of terrorism shootings during Christchurch attacks in New Zealand is emblematic. The role of online platforms in favouring the sharing of messages, contacts or content which convey terrorist values. The private nature of online platforms raises issues about the extent to which constitutional states can interfere with their freedom to run their business. In particular, the relevance of this observation can be understood by considering that both the EU and US exempt online intermediaries from liability for hosting third-party content. This consideration leads to wonder how constitutional states can address terrorism threats online due to their cross-border character and the involvement of online platforms in the dissemination of such content. In this scenario, this work provides the legal framework for countering terrorist online content by looking at how public actors, at national and supranational level, and online intermediaries can tackle this threat to pursue objectives of public interests such as security while protecting fundamental rights. Within this complex constitutional exercise, this work analyses the EU and US legal strategies to tackle terrorist online content shared through online platforms.

Research projects