The rise of private policy in the digital market: consequences for fundamental rights and the rule of law

Abstract

The work which follows examines the process by which private actors in the digital market are redefining fundamental rights through their contractual terms and practical operation. The argument is allied to works which consider ‘digital constitutionalism,’ the idea that private actors in the digital market are increasingly displaying constitutional features through their contractual terms and documents. Unlike a majority of work in the area of digital constitutionalism the work does not argue that private actors setting rights based standards represents a positive development. Rather, the work argues that private actors, through their re-definition of public, normative standards are generating a body of rules and practices which have displaced democratically decided rights standards with negative consequences for individual autonomy and the Rule of Law. The work argues that this process has been enabled by three features of EU law and policy. The first is an approach of functional equivalence to laws governing the digital market. In accordance with this approach the digital market has been treated as equivalent to traditional markets and its participants are viewed as requiring no additional or supplementary protections or regulations. Of particular significance in functionally equivalent attitudes to the digital market is the Union’s deference to freedom of contract as part of an ordoliberal attitude to market regulation. While this attitude is now beginning to erode (to some extent) in the context of data protection it remains the dominant regulatory approach of the European Union in the digital market. The second feature, not unrelated to the first, is the Union’s preference for economic rather than socially orientated standards and protections in it policies as well as its secondary laws. As part of this preference, when fundamental rights cross the Rubicon from vertically enforced constitutional protections to horizontally enforceable legislative ones their content is transmuted in a manner which favours their economic over socially oriented aspects. The third feature, is what is referred to within the work as the Union’s brittle constitutionalism – that is the Union’s hesitant and incomplete articulation of and commitment to rights enforcement. This feature is the result in part of the Union’s ambiguous and at times hostile attitude to the development of fundamental rights policy. The work examines the impact of these trends and the rise of private policy they have generated on the rights to privacy and property under the Charter of Fundamental Rights.