The European Union is widely perceived and presents itself as the global vanguard in the struggle to regulate digital corporations. The Union’s regulatory schemes, especially the Digital Services Act, are widely hailed as the continent’s – and from the EU’s perspective, the world’s – best shot at taming digital capitalism. The EU designed many of those measures to become a ‘global standard’. Yet, drawing from organization theory and a legal realist analysis of several of the key provisions of the DSA and their potential implementation, I claim that crucial parts of Europe’s reforms will not become a global normative standard – or, if they do, in ways fundamentally different to what many would expect. That is for two reasons. First, while the DSA does establish a few concise and objective substantive standards, it also grants extensive discretion to private organizations. Second, if private actors will, as we must assume, exercise this discretion in an autonomous (some might say self-serving manner), many publicly acclaimed provisions of Europe’s digital governance reforms may yield globalized private ordering carrying the legitimizing label of EU supervision. Consequently, some current European reforms may stabilize rather than constrain private power and diffuse, if at all, only European ceremonies and labels but not necessarily the full substance of EU law.
Curb Your Enthusiam: Why Europe's Digital Reforms May Not Become a Global Standard
