The precautionary principle in the digital environment

Abstract

The unstoppable technological development that characterizes modern society has led to the creation of what is commonly referred to as the “digital environment”, a virtual space created through the use of computer language and made accessible thanks to electronic and digital devices in which, from the interactions between individuals and from the activities carried out in it, effects - even negative ones - capable of having repercussions within the physical world, can arise. In the light of an evolutionary interpretation of the precautionary principle, in risk management activities, the Public Administration is called upon to carry out a delicate balance between the need for innovation and the protection of fundamental human rights. However, faced with the inability of national and European legislators to keep up with such a changing and dynamic reality, in the absence of a regulatory framework for the phenomenon, it is necessary to verify whether the use of new technologies by the Public Administration is a manifestation of the exercise of a power (although implicit) or constitutes a mere organizational module functional to the exercise of administrative power attributed by a primary source of law. In the first case, in fact, the wide discretion enjoyed by the Public Actor in the risk management activity, in the absence of a regulatory framework that defines the perimeter of the exercise of power, would risk overflowing from the margins outlined by the principle of legality, determining the illegitimacy of the administrative action; in the second case, however, the use of Artificial Intelligence would represent a mere modus operandi of the Public Administration, accessory and functional with respect to the exercise of the administrative power attributed - upstream - by the law.