Abstract

Risk has become a way to interpret digital policies. The binary logic of compliance/non-compliance is thus overcome by a different form of compliance where legal requirements are rather tailored to the targets of regulation themselves. In European digital policy, these objectives are primarily related to the protection of fundamental rights and democratic values. One of the most typical structures of the risk-based approach, such as that characterising the GDPR, features a mechanism by which risk evaluation and risk mitigation are put in place directly by the targets of regulation to protect the rights of data subjects, or the Digital Services Act which combines top-down rules with bottom-up risk assessment obligations applying to very large online platforms, in order to protect fundamental rights and democratic values. The AI Act seems to turn upside down such a perspective by implementing a more clearly top-down form of risk-based regulation. The risk-based approach permeating European digital policy reflects a shift from a right-based approach to a risk-based approach, which aims to introduce a flexible system that increases accountability. Risk, in other words, functions as a proxy for an activity, that of the balancing of interests and values, which is intrinsically constitutional by its own nature. Such an approach aims to accommodate on the one hand, the economy-oriented interest towards innovation and the creation of an internationally competitive digital single market; on the other hand, the often-conflicting interest towards the protection of democratic values and the rights and freedoms of individuals.

About the speaker

Giovanni is the author of the monograph Digital Constitutionalism in Europe. Reframing Rights and Powers in the Algorithmic Society (Cambridge University Press 2022). His research has been published in edited books and international journals, including the International Journal of Constitutional Law, Global Constitutionalism, Common Market Law Review, Computer Law and Security Review, European Journal of Legal Studies, International Journal of Communication.