Private Law Regulation of Digital Intermediaries

Forthcoming in European Review of Private Law 2/2019

Tilburg Private Law Working Paper Series No. 2/2019

20 Pages Posted: 24 Apr 2019

See all articles by Dan Wielsch

Dan Wielsch

University of Cologne - Faculty of Law

Date Written: April 10, 2019

Abstract

Communication in the digital world depends on Internet intermediaries. By means of technology they control access to information and function as creators of the public. In particular, platforms for social networks do not just facilitate communication but they shape sociality. However, as important as online intermediaries are for the entire spectrum of social life, they create autonomous normative orders, the rules of which they can self-enforce based on their control of the logical architecture. Under these circumstances the law should be cautious not to confuse the autonomisation of emergent normativity and private regulation with their naturalisation. The article enquires into the options of private law to regulate the regulatory activities of digital intermediaries. In order to apply private law review to digital regulation, it is essential to understand the terms of use and running code as manifestations of the autonomy of the digital. Private law would then act as a kind of constitutional law for the digital medium. In the context of such social constitutions, protection of freedom is primarily accomplished through developing standards of due process for private regulation. The focus of private-law instruments should be to induce procedural and participatory innovations in the normative orders of transnational media.

Keywords: Internet, Intermediaries, Digital Media, Private Governance, Contract, Constitutionalism, Fundamental Rights

Suggested Citation

Wielsch, Dan, Private Law Regulation of Digital Intermediaries (April 10, 2019). Forthcoming in European Review of Private Law 2/2019; Tilburg Private Law Working Paper Series No. 2/2019. Available at SSRN: https://ssrn.com/abstract=3369592 or http://dx.doi.org/10.2139/ssrn.3369592

Dan Wielsch (Contact Author)

University of Cologne - Faculty of Law ( email )

Albertus-Magnus-Platz
Cologne, 50923
Germany

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