Към понятието „цифров конституционализъм“ – концептуални основания и приложимост в българската правна система
Towards the Concept of „Digital Constitutionalism“ – Conceptual Foundations and Applicability in the Bulgarian Legal System

Summary/Abstract: The topic of digital constitutionalism is becoming increasingly relevant, emerging as a central concept used to describe processes related to the role of large private online corporations, whose platforms host a significant portion of the development of social relations in the digital environment – particularly very large online platforms and very large search engines. Digital constitutionalism should be understood as the embodiment of constitutional guarantees traditionally aimed at limiting state power, but which can be adapted to regulate the structural power of platforms as well. This is due to their algorithms and rules, which determine the way fundamental rights such as access to information and the exercise of freedom of expression, as well as a number of other freedoms, are exercised. The present analysis examines whether and to what extent the concept of „digital constitutionalism“ – developed primarily in the English-language legal literature – possesses normative applicability within the context of European Union law and the Bulgarian legal system. The point of departure is critical – the concept is not an established legal category and must be tested rather than accepted automatically. The analysis demonstrates that, although EU law follows a functional constitutional logic and regulating private digital power, this alone does not provide sufficient grounds for the unequivocal acceptance of the concept. The principal conclusion is that, irrespective of the outcome of the terminological debate, there is a genuine legal problem arising from the fact that private actors exercise power with constitutional significant effects without possessing constitutional legitimacy, while national legal systems, including the Bulgarian one, remain structurally ill-equipped to address those challenges. Of particular importance is the fundamental observation that, in the digital environment, communicative rights are often no longer restricted by public authorities but rather by the decisions and rules of private platforms, which are based on terms of services and algorithmic mechanisms. This raises the question of the horizontal effect of fundamental rights, as well as the need for new legal instruments capable of safeguarding the balance between freedom of expression, the protection of democratic processes, and legitimate public interests in the context of the digital environment.

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