Vagelis PAPAKONSTANTINOU: The (New) Role of States in a ‘States-As-Platforms’ Approach

The forceful invasion of “online platforms” not only into our everyday lives but also into the EU legislator’s agenda, most visibly through the DSA and DMA regulatory initiatives, perhaps opened up another approach to state theory: what if states could also be viewed as platforms themselves? Within the current digital environment  online platforms are information structures that hold the role of information intermediaries, or even “gatekeepers”, among their users. What if a similar approach, that of an informational structure, was applied onto states as well? How would that affect their role under traditional state theory?

The ‘States-as-Platforms’ Approach

Under the current EU law approach, online platforms essentially “store and disseminate to the public information” (DSA, article 2). This broadly corresponds to the digital environment around us, accurately describing a service familiar to us all whereby an intermediary offers to the public an informational infrastructure (a “platform”) that stores data uploaded by a user and then, at the request of that same user, makes such data available to a wider audience, be it a closed circle of recipients or the whole wide world. In essence, the online platform is the necessary, medium to make this transaction possible.

Where do states fit in? Basically, states have held the role of information intermediaries for their citizens or subjects since the day any type of organised society emerged. Immediately at birth humans are vested with state-provided information: a name, as well as a specific nationality. Without these a person cannot exist. A nameless or stateless person is unthinkable in human societies. This information is subsequently further enriched within modern, bureaucratic states: education and employment, family status, property rights, taxation and social security are all information (co-)created by states and their citizens or subjects.

It is with regard to this information that the most important role of states as information brokers comes into play: states safely store and further disseminate it. This function is of paramount importance to individuals. To live their lives in any meaningful manner individuals need to have their basic personal data, first, safely stored for the rest of their lives and, second, transmittable in a validated format by their respective states. In essence, this is the most important and fundamental role of states taking precedence even from the provision of security. At the end of the day, provision of security is meaningless unless the state’s function as an information intermediary has been provided and remains in effect—that is, unless the state knows who to protect.

What Do Individuals Want?

If states are information brokers for their citizens or subjects what is the role of individuals? Are they simply passive actors, co-creating information within boundaries set by their respective states? Or do they assume a more active role? In essence, what does any individual really want?

Individuals want to maximise their information processing. This wish is shared by all, throughout human history. From the time our ancestors drew on caves’ walls and improved their food gathering skills to the Greco-Roman age, the Renaissance and the Industrial Revolution, humans basically always tried, and succeeded, to increase their processing of information, to maximise their informational footprint. Or in Van Doren’s wordsthe history of mankind is the history of the progress and development of human knowledge. Universal history […] is no other than an account of how mankind’s knowledge has grown and changed over the ages”.

At a personal level, if it is knowledge that one is after then information processing is the way of life that that person has chosen. Even a quiet life, however, would be unattainable if new information did not compensate for inevitable change around us. And, for those after wealth, what are riches other than access to more information? In essence, all of human life and human experience can be viewed as the sum of the information around us.

Similarly, man’s wish to maximise its information processing includes the need for security. Unless humans are and feel secure their information processing cannot be maximised. On the other hand, this is as far as the connection between this basic quest and human rights or politics goes: increase of information processing may assumedly be favoured in free and democratic states but this may not be necessarily so. Human history is therefore a long march not towards democracy, freedom, human rights or any other (worthy) purpose, but simply towards information maximization.

The Traditional Role of States Being Eroded by Online Platforms

Under traditional state theory states exist first and foremost for the provision of security to their citizens or subjects. As most famously formulated in Hobbes’ Leviathan, outside a sovereign state man’s life would be “nasty, brutish, and short” (Leviathan, XIII, 9). It is to avoid this that individuals, essentially under a social contract theory, decide to forego some of their freedoms and organise themselves into states. The politics that these states can form from that point on go into any direction, ranging from democracy to monarchy or oligarchy.

What is revealing, however, for the purposes of this analysis in Hobbes’ book is its frontispiece: In it, a giant crowned figure is seen emerging from the landscape, clutching a sword and a crosier beneath a quote from the Book of Job (Non est potestas Super Terram quae Comparetur ei / There is no power on earth to be compared to him). The torso and arms of the giant are composed of over three hundred persons all facing away from the viewer, (see the relevant Wikipedia text).

The giant is obviously the state, composed of its citizens or subjects. It provides security to them (this is after all Hobbes’ main argument and the book’s raison d être), however how is it able to do that? Tellingly, by staying above the landscape, by seeing (and knowing) all, by exercising total control over it.

Throughout human history information processing was state-exclusive. As seen, the only thing individuals basically want is to increase their processing of information. Nevertheless, from the ancient Iron Age Empires to Greek city-states, the Roman empire or medieval empires in the West and the East, this was done almost exclusively within states’ (or, empires’) borders. With a small exception (small circles of merchants, soldiers or priests who travelled around) any and all data processing by individuals was performed locally within their respective states: individuals created families, studied, worked and transacted within closed, physical borders. There was no way to transact cross-border without state intervention, and thus control, either in the form of physical border-crossing and relevant paperwork or import/export taxes or, even worse, mandatory state permits to even leave town. This was as much true in our far past as also recently until the early 1990s, when the internet emerged.

States were therefore able to provide security to their subjects or citizens because they controlled their information flows. They knew everything, from business transactions to personal relationships. They basically controlled the flow of money and people through control of the relevant information. They could impose internal order by using this information and could protect from external enemies by being able to mobilise resources (people and material) upon which they had total and complete control. Within a states-as-platforms context, they co-created the information with their citizens or subjects, but they retained total control over this information to themselves.

As explained in a recent MCC conference last November, online platforms have eroded the above model by removing exclusive control of information from the states’ reach. By now individuals transact over platforms by-passing mandatory state controls (borders, customs etc.) of the past. They study online and acquire certificates from organisations that are not necessarily nationally accredited or supervised. They create cross-national communities and exchange information or carry out common projects without any state involvement. They have direct access to information generated outside their countries’ borders, completely uncontrolled by their governments. States, as information brokers profiting from exclusivity in this role now face competition by platforms.

This fundamentally affects the frontispiece in Leviathan above. The artist has chosen all of the persons composing the giant to have no face towards the viewer, to face the state. This has changed by the emergence of online platforms: individuals now carry faces, and are looking outwards, to the whole wide world, that has suddenly been opened-up to each one of us, in an unprecedented twist in human history.

The New Role of States

If the generally accepted basic role of states as providers of security is being eroded by online platforms, what can their role be in the future? The answer lies perhaps within the context of their role as information intermediaries (a.k.a. platforms), taking also into account that what individuals really want is to maximise their information processing: states need to facilitate such information processing.

Enabling maximised information processing carries wide and varied consequences for modern states. Free citizens that are and feel secure within a rule of law environment are in a better position to increase their informational footprint. Informed and educated individuals are able to better process information than uneducated ones. Transparent and open institutions facilitate information processing whereas decision-making behind closed doors stands in its way. Similarly, information needs to be free, or at least, accessible under fair conditions to everybody. It also needs to remain secure, inaccessible to anybody without a legitimate interest to it. Informational self-determination is a by-product of informational maximisation. The list can go on almost indefinitely, assuming an informational approach to human life per se.

The above do not affect, at least directly, the primary role of states as security providers. Evidently, this task will (and needs to) remain a state monopoly. Same is the case with other state monopolies, such as market regulation. However, under a states-as-platforms lens new policy options are opened while older assumptions may need to be revisited. At the end of the day, under a “pursuit of happiness” point of view, if happiness ultimately equals increased information processing, then states need to, if not facilitate, then at least allow such processing to take place.

Vagelis Papakonstantinou is a professor at Vrije Universiteit Brussel (VUB) at LSTS (Law Science Technology and Society). His research focuses on personal data protection, both from an EU and an international perspective, with an emphasis on supervision, in particular Data Protection Authorities’ global cooperation. His other research topics include cybersecurity, digital personhood and software. He is also a registered attorney with the Athens and Brussels Bar Associations. Since 2016 he has been serving as a member (alternate) of the Hellenic Data Protection Authority, while previously served as a member of the Board of Directors of the Hellenic Copyright Organisation (2013-2016).

Márton CSAPODI: Integration without control? The FCC has ruled on EU borrowing

On 6 December 2022, the German Federal Constitutional Court (FCC) ruled on a case affecting the whole of Europe, as it had to decide whether the EU Council’s Own Resources Decision (ORD), which authorizes the Commission to borrow up to €750 billion on behalf of the EU, complies with German constitutional requirements. The FCC ultimately allowed the joint EU borrowing (more precisely the domestic legislation implementing the ORD), but the reasoning of the decision gives a more nuanced picture. It seems that this leniency is far from stemming from a conviction in the legality of the borrowing. In fact, the reasoning suggests that the German constitutional judges are far from being convinced that the ORD does not constitute an overstepping of the European Union’s powers. However, under the ultra vires test applied in their decision, anything that does not constitute a manifestly evident overstepping of competence is permissible, even if there are otherwise indications that the boundaries of the Treaties have been left behind. While after their PSPP decision delivered two years ago many feared that other national courts would go on to review EU measures, now it seems that even the Germans have backed down. The question is whether EU legislation will remain subject to any judicial type of control at European or national level.

Tense waiting: will there be another ultra vires decision?

The decision of the FCC was eagerly awaited because in 2020, it fulfilled its earlier threats and dropped the “nuclear weapon”: in connection with the European Central Bank’s bond purchase program launched in 2015, it found that both the ECB and the Court of Justice of the European Union had exceeded their powers. While this did not affect the practical application of the PSPP (public sector purchase program) at the time, it raised fears among many about the future of the eurozone and the EU legal system as to the potential long-term consequences of the decision. What happens if German constitutional judges continue to review other EU measures or “worse”: if other constitutional courts follow the German example? One could look forward with excitement to see what conclusion the FCC will reach now that it is once again examining whether there has been an overstepping of competences by EU institutions.

What did the FCC examine?

The measures examined by the constitutional court are linked to the NextGenerationEU package, part of the European recovery plan following the Covid-19 pandemic, closely tied to the EU’s multiannual budget for 2021-2027. The framework for the financial assistance to Member States to deal with the effects of the epidemic is set out in the European Union Recovery Instrument (EURI). The Treaty basis of the recovery instrument is Article 122 TEU, which allows the Council to grant EU financial assistance to a Member State in difficulties caused by natural disasters or other events beyond its control.

The ORD, the Council’s Own Resources Decision allows borrowing for the Commission on behalf of the EU on the basis of Article 311 TEU (which allows for the creation of new types of own resources) and links it to the EU Recovery Instrument, i.e. the post-crisis recovery from the effects of the epidemic.

The complainants’ request was for the FCC to declare, first, that the ORD violates German constitutional identity and, second, that it constitutes an overstepping of EU competences. According to their application, the ORD does not have a sufficient legal basis in Article 122 TEU and violates the requirements of Article 311 and the non-bailout clause under Article 125.

The identity of the German basic law remains intact

As a preliminary point, it is worth noting that the identity test (i.e. whether EU law violates German constitutional identity) covers a smaller area than the ultra vires test (i.e. whether there has been an abuse of power). However, the FCC’s ultra vires test is also permissive: in the 2020 PSPP decision, for example, it said that the overstepping of competences has to be evident (e.g. the CJEU overstepped its jurisdiction if its interpretation evidently disregarded traditional European methods of interpretation).

In the context of the infringement of constitutional identity, the FCC had to examine whether the ORD infringes on the budgetary powers of the Bundestag (and thus the right to democratic self-determination that is part of the basic law’s identity). The FCC concluded on this issue that the ORD does not infringe the budgetary responsibilities of the Bundestag because it can be used for exceptional, specific purposes and the influence of the parliament on the government during the implementation of the recovery plan is preserved. (During the hearings, both the federal government and the Bundestag stressed the ORD is a one-off, exceptional and special solution, which in no way constitutes a step towards a “fiscal union”.)

The overstepping of competence is not “manifestly evident”

The FCC’s findings on the question of misuse of powers were more complex, despite the fact that it concluded that there was no manifestly evident overstepping of the powers conferred on the EU. While it is true, according to the court, that the Treaties do not contain any specific authorization of the European Union to borrow on the capital markets, it is “not completely implausible” that, in exceptional circumstances, Article 311 TEU would create such a possibility. However, to make this possible, several conditions are set out by the FCC, e.g. that funds are used only for tasks falling within the competences of the European Union in accordance with the principle of conferral, that borrowing is limited in time and amount, and that the amount of “other revenue” does not exceed the total amount of own resources.

The FCC has expressed some concerns that the link between the EURI and the impact of the pandemic is not always close – it also includes tasks such as digitalization and green transition, and 10% of the instruments would finance ongoing programs that have nothing to do with the pandemic. While the judges expressed their doubts about how Article 122 could provide an appropriate legal basis for the ORD, they retreated by concluding that it also “cannot be clearly ruled out” – a manifest overstepping of powers cannot therefore be established here.

The FCC found that, although the amount and timeframe of the borrowing cast doubt on whether it can be considered truly exceptional, the ORD does, after all, contain some limitation in terms of amount and time. The constitutional judges also said that it “appears possible” that other revenues obtained through borrowing exceed the own resources – but this is not manifestly evident. Why? According to the ORD, borrowing can amount to a maximum of €750 billion, while the EU’s multiannual financial framework for 2021-2027 amounts to €1 074 billion. The FCC also concludes, on the basis of the principle of annuality, that borrowing will exceed own resources in 2021 and 2022, in breach of Article 311 TEU. At the same time, if the principle of annuality is not applied (although there is no particular justification as to why), the overall amount of the borrowing is of course lower than the total budget for 2021-2027 (still not significantly). Thus, the FCC avoided to find a manifest violation of Article 311.

According to Article 125 TEU, neither the EU nor the other Member States can be held liable for the obligations of a Member State (non-bailout clause). According to the German judges, since the NGEU does not create a direct liability or mechanism for establishing liability, there is no direct infringement of Article 125. They add, however, that the ORD may constitute a circumvention of Article 125, since ultimately, if the EU’s own resources do not cover it, the Commission will have to call on the resources of the Member States to repay the loan – but this circumvention is “at least not manifestly evident” according to the FCC. Although EU borrowing appears to be somewhat at odds with Article 125, the Treaty does not explicitly rule out the possibility of deriving such powers from Article 122, says the German court.

Integration without control?

The content of the FCC’s reasoning gives rise to some surprise as to the outcome. The court has in fact deduced that the ORD is an overstepping of EU powers – yet it has decided to be lenient. One can only hope that the fact that the German government promised the Commission after the PSPP decision to do its utmost to avoid ultra vires decisions has nothing to do with the surprising outcome. The promise itself reflects a very unique conception of the rule of law, that denies the separation of powers, in particular the independence of the judiciary.

The ultra vires review, which two years ago seemed like a serious weapon, cannot be considered as a means of dealing with overstepping of EU powers, when applied in the manner outlined above. One might ask: if the German Federal Constitutional Court no longer wishes to step up in the event of an abuse of jurisdiction, who will do so? The Court of Justice of the EU cannot be counted on as it in fact does not exercise any vertical control of competences, even though this would be one of its tasks. With this decision, the German constitutional judges have indicated that, although they are aware that there is a likelihood of a misuse of powers and that the ORD was created in breach of/by circumvention of the TEU, they do not wish to put any obstacles in the way of its implementation. This would render ultra vires review meaningless and would also deprive the integration process of judicial control by the Member States, which has so far relied heavily on the authority of the German Federal Constitutional Court. It should be interesting to see which one of the PSPP decision from two years ago and today’s abrupt reversal will be considered the rule and which the exception in the long run.

Márton Csapodi is a PhD student at the Pázmány Péter Catholic University and research fellow at the MCC Center for Constitutional Politics under the MCC’s PhD program. He graduated as a lawyer in 2022 at the Pázmány Péter Catholic University Faculty of Law and Political Sciences. His current research interests include constitutional pluralism, European constitutionalism and judicial review.

James C. COOPER- John M. YUN: Competing For or Against Privacy? On Using Competition Law to Address Privacy Issues

In our digital economy, privacy has taken center stage. Given that spotlight, we have already seen regulatory intervention into markets with the EU’s GDPR and DMA. (More generally, GDPR and DMA are part of a larger body of regulation that the EU has passed or is contemplating passing to address large platforms. (See Márton Sulyok’s “How to Tackle IT?” published on this blog.) While the verdict is still out, the early empirical evidence strongly suggests that whatever its privacy benefits, the GDPR has had negative economic consequences.

Because the large tech platforms that tend to be in the bullseye of regulators on both sides of the Atlantic give their products away and live off consumer information, a conventional wisdom that has arisen is that market power becomes manifest through degraded privacy protections. In other words, the assertion is that, when platforms have more market power, they lower their privacy quality. Yet, in a recent article, Antitrust & Privacy: It’s Complicated, our empirical results challenge this conventional wisdom. In this blog post, we contribute to the debate surrounding personal data protection that has already been started by Bianka Maksó and Lilla Kiss also on this blog.

Privacy and antitrust have been on a collision course for some time now. For instance, in the U.S., an executive order from the president denounced dominant online platforms for using their market power “to gather intimate personal information that they can exploit for their own advantage.” The chair of the U.S. Federal Trade Commission (FTC) has expressed concern that “[m]onopoly power […] can enable firms to degrade privacy without ramifications.” In the EU, the story is the same. For example, the German Bundeskartellamt brought a case against Facebook based on the theory that violating consumers’ privacy right under the GDPR gave Facebook a data advantage the helped cement its dominant position.

On a superficial level, the negative relationship between privacy quality and market power sounds “right”—after all, we often hear that “if the product is free, then the product is me.” This leads to the following testable hypothesis: if data is the price that we pay for using these free platforms, market power will become manifest through lower levels of privacy.

In our paper, we address this hypothesis both theoretically and empirically. On a theoretical level, equating privacy and price is problematic for several reasons. First, while privacy is a “normal good,” in that, all else equal, consumers prefer more privacy to less, how consumers value privacy relative to other products is uncertain. Specifically, the “Privacy Paradox” suggests that, although consumers profess to care deeply about their privacy in surveys, their revealed behavior suggests otherwise. The root cause of this paradox is the subject of considerable debate. But whether rational choice, asymmetric information, or cognitive biases are to blame is beside the point—if privacy does not drive consumers’ marketplace choices, then privacy is not a relevant dimension of competition. 

Second, unlike price, user data is an input into a larger production process to produce some type of output. That is, unlike a monopolist who enjoys increased profits immediately when they exercise market power by reducing the quality of their product (and, hence, the monopolist’s costs), a firm can profit from increased levels of data collection only by taking an action to monetize them. And this monetization process provides benefits, typically through customization of advertisements or services (e.g., recommendation engines in streaming services or bespoke workouts in fitness apps). Thus, the relationship between the collection of user data and consumer welfare is not necessarily negative—again, unlike in the case for price. Finally, contrary to popular opinion, there is no general economic result that establishes a relationship between greater competition and product quality. To the extent that we view privacy as a dimension of quality, the result carries through—there is no a priori reason to assume that competition is more likely to result in better privacy protection than monopoly.

The relationship between competition intensity and privacy quality is further complicated for multisided platforms, which cater to both users and advertisers/sellers. Put simply, while users may value more privacy, advertisers/sellers value less user privacy. A platform balances the competing incentives of these two groups. Moreover, if we consider that users themselves may benefit from more personalized content generated from user data, then the story is even more complicated.

Theory can only take you so far, however. What is happening in the real world? Namely, what is the empirical relationship between market power and privacy quality? Surprisingly, little work has been done to answer this question. We attempt to fill that void with our study. We examined the relationship between various measures of market concentration—an imperfect proxy for market power, but one used by competition authorities throughout the world—and privacy levels for mobile apps on the Google Android platform and popular websites.

For mobile apps, we measure privacy quality using, which is a third-party assessment of app quality from a group of researchers at Carnegie Mellon University. Our results suggest no relationship exists between privacy grades and our proxies for market power, that is, market shares based on Google Play Store categories, and market concentration, i.e., the Herfindahl-Hirschman Index (HHI). We also find a robust, negative relationship between privacy and app quality ratings, consistent with a tradeoff between privacy and other dimensions of product quality that consumers value.

For websites, we measure privacy quality using DuckDuckGo’s privacy ratings for websites in thirty-seven website categories (e.g., Search, Health, News). These website categories are from SimilarWeb. While these categories do not necessarily correspond with “relevant product markets” used in competition law, they represent independently created grouping of sites that are based on content tags and website self-identification. Again, the results suggest no relationship between privacy ratings and market concentration measures.

Combined, our empirical results cast serious doubt on the validity of the conventional wisdom that firms exercise market power by reducing privacy, and also suggest that app developers use consumer data to enhance the quality of their products. What this means for competition policy is that antitrust law appears to be a poor vehicle to address perceived privacy problems. To the extent that the marketplace is failing to produce optimal levels of privacy, we suggest that consumer protection aimed at increasing consumer access to information and the firms’ ability to credibly commit to higher privacy quality promises is likely to be the better policy tool.

The presumption that privacy and market power are linked is neither supported by theory nor empirics, which suggests that bringing high-profile antitrust cases against large platforms is unlikely to result in higher levels of privacy protection. The relationship between privacy and market power is complicated, and as such, the debate surrounding competition law and privacy could benefit from an injection of both nuanced theoretical considerations and more empirical evidence.

James C. Cooper is Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University; previously served as Deputy Director of Economic Analysis in the Bureau of Consumer Protection, U.S. Federal Trade Commission.

John M. Yun is Associate Professor of Law and Deputy Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University; previously served as an Acting Deputy Assistant Director in the Bureau of Economics, Antitrust Division, U.S. Federal Trade Commission.

Lilla Nóra KISS: Professional Ethics and Morality Can Prevent Social Media From Becoming Sovereign

When top Russian diplomat Maria Zakharova explains that George Orwell’s dystopian classic Nineteen Eighty-Four was written to describe the dangers of Western liberalism and not totalitarianism, we may feel as though we are watching an absurd Monty Python satire. In those parodies, artists question facts and overkill conversations with extreme statements to criticize an existing system and discourage the audience from becoming participants in the absurd comedy. While such plays used to primarily cater absurdity for entertainment purposes only, they are gradually starting to normalize the reality that has come of absurdity, which is definitely less enjoyable.

To substantiate this claim, our current reality can be broken down into multiple components of narration: the producers of a play can be viewed as analogous to the owners of media outlets and social media platforms, the directors to the censors, the main actors to the influencers—journalists, politicians, policymakers, and other public figures—and the members of the audience to the users of said media outlets or citizens.

As the reality slowly becomes absurd, members of the passively consuming audience become active participants of the play. Obviously, ownership makes profit-oriented decisions; the aim is to maximize the audience–and thus, the profit. The more extreme and negative the content is, the more people it reaches. The competition to become the most popular outlet slowly pushes the focus from professional, objective, and ethical information-sharing towards somewhat sensationalist content (also known as ‘clickbait’) as human beings struggle with the ‘limited rationality’ mindset, identified by Herbert A. Simon in 1947. Consequently, this competition promotes partially irrational decision-making capabilities. Essentially, humans have to make decisions based on the information available, but due to their cognitive and time limitations, people are vulnerable to the sources of information. Today, social media serves as a general source of news for Americans. According to the Pew Research Center’s survey conducted in January 2021, Facebook stands out as the regular source of news for Americans (54%), while a large portion of Twitter users regularly gets news on the site (59%). Since the resources and capacities are limited, platforms have the green light to filter and pre-digest the news for their users. The cherry-picked news comes from well-selected sources and is directly delivered to the users’ newsfeed. The filtered information behaves as a sub-threshold stimulus that unconsciously supports users’ interpretations of certain topics. Complemented by the content, the description of which lacks objectivity, users are easy targets of polarization. As a result, the demarcation lines between those who agree with a certain opinion and those who disagree become more acute.

In today’s age of surveillance capitalism – as Shoshana Zuboff named the “bloodless battle for power and profit as violent as any the world has seen” – the limit of professional ethics of journalists, politicians, and other influencers is a key question. Another significant point is the owners’ liability for intentionally (trans)forming public opinion. As Count István Széchenyi – often referred to as the Greatest Hungarian –famously expressed, “ownership and knowledge come with responsibilities.” In a world where all information is available on the internet and owners of digital platforms are free to decide what to show to or hide from the masses, ownership over information becomes the most powerful means to shape the future of society. There is no doubt that owners structure societies; the question is if they do it with moral observations or purely for their own financial benefits.

The former approach would be the idealistic scenario: it necessitates a social media environment where platforms’ owners do not intend to form the public opinion and therefore: (1) allow all forms of speech as free speech even if prone to expressing extremism, (2) users could pick and choose freely from millions of pre-generated information upon their consciously and explicitly preselected priorities (which obviously pushes the boundaries of limited human capacities and timeframes), and (3) would not tolerate or apply any cancel culture. This also inherently implies that (4) even personae non gratae — Latin for “people not welcome”— would be allowed to use these platforms even if their views are controversial to the views of the ownership and as such, considered undesirable on their platforms. This would also entail a lack of double standards and a state of objective fairness. At the same time, such an ideal form of social media management would not automatically excuse crossing certain thresholds, such as sharing hate speech content, child pornography, or any other criminal acts, as the platforms would still be legally obligated to take the necessary measures in enabling established public institutions to interact and restore the balance. By the conclusion of this description of the ideal social media platform, there should be no doubt that this utopian scenario does not currently exist.

In the latter case, however, without being overly pessimistic, the world becomes a worse place every day. In this sad but more realistic scenario, private entities are interested in playing with information and using readers’ limited rationality. As a result, owners can intentionally form a public opinion as a side effect of their profit maximization. Of course, the profit-oriented approach is the legitimate interest of corporations—there is nothing wrong with that – until profit maximalization happens in compliance with ethical and moral standards. However, this leads to a very interesting legal dilemma. On the one hand, corporate decisions on allowing or restricting content are legitimate based on Section 230 of the CDA. (The US law setting the standards for ‘decent communications’ since 1996.) However, on the other hand, that decision may lead to illegitimate consequences because corporations have no legitimate authority to act as sovereigns and to form, deform, or transform public opinion by using their power over information. To attain unmanipulated public opinion is, of course, unimaginable and unnecessary in general, but identifying the influencer is crucial. Yet, tracing the influencer is almost impossible in the virtual sphere, hence the question of accountability for these platforms.

Translating the situation into the language of legal theory, the debate is about the relationship between law and morals. Natural law theory holds that law should reflect moral reasoning and should be based on moral order, whereas the theory of legal positivism holds that there is no connection between law and moral order. A symbolic example that highlights the differences from a practical point of view is that Nazi Germany and the Stalinist Soviet Union – two infamous totalitarian regimes of the 20th century – were rule of law regimes from the context of a purely legal positivist interpretation. Under natural law, however, these states were not operating under the rule of law, and their laws were not valid due to the lack of morality of their content. This is the case because natural law requires morality to validate legal content, while legal positivism does not.

Reflecting the opposing views on the current issue, the legal positivist would raise the question, “what does the law say?” for the situation and would provide the ‘easy answer’: private entities, including the owners of social media platforms, are legally entitled to make discretionary decisions regarding the content they share or ban on their own platforms, regardless of the influence they exert over their users. However, natural law would require adding moral values of ‘good’ or ‘bad’, ‘right’ or ‘wrong’ to make an adequate evaluation and give a ‘legal’ or an ‘illegal’ answer. Does these private entities’ exercise of their freedom to influence their users by the content they share lead to legal or illegal outcomes? In addition, if technically an act is legal, does it constitute the use or misuse of corporate freedom under Section 230 CDA? In other words, does Section 230 license these corporations to shape public opinion? Is there any moral standard that the ownership should follow when making their private decisions based on Section 230, especially knowing that the decision may influence and manipulate users? Of course, it is difficult to measure morality as its levels are very relative. It is even more complicated to evaluate morality in the digital sphere. Yet even so, basal minimum moral standards would support both the ownership in making fair decisions and the creation of the most objective environment for the news cycle. Introducing content-neutral and impartial minimum standards based upon morality might therefore help shift the emphasis back to normalcy from a partisan path.

When the producers (owners) introduce moral principles to reach fairness, directors (censors) are free to manage their tasks within the frames of their professional ethics. The main players (the influencers: journalists, politicians, policymakers, and other public figures) are forced to serve the public interest instead of their own interests. The ownership has a huge responsibility for doing good within and for the society. Otherwise, the play becomes an absurd reality produced by quasi omnipotent owners, directed by unethical censors, and influenced by self-interested public figures.

Morality and law together can prevent social media ownership from becoming uncontested, illegitimate sovereigns. Saving the checks and balances to maintain a healthy balance between private and public is important. We could see what happens when the public-private balance is distorted. In communist dictatorships, private entities are weak compared to state actors and have an extremely narrow room for maneuver in their interest advocacy. In two famous communist countries, People’s Republic of China and the Russian Federation, privately-owned media is virtually non-existent: the balance is distorted and private actors are dependent upon public institutions. Dependency, in turn, leads towards toleration of oppression and ideology-based manipulation. As a result, absurd things ensue: the people of Russia may not know they have been invading Ukraine for roughly three months now. In China, Western “traditional” social media is geo-blocked and Chinese have their own platforms. Strong totalitarian states do not bear any private intervention to their decision-making. On the other hand, it is also a mistake when private actors overreach their competences and influence public opinion to serve their private interests.

There is evidence that most people prefer normalcy over extremes. That is good news. Normalcy requires people in the middle to keep a healthy balance between private interest and public interest. Professional ethics, morality, and ownership liability are able to prevent private entities from becoming the new sovereigns that influence alternative movies about digital absurdities.

Lilla Nóra KISS is a postdoctoral visiting scholar at Antonin Scalia Law School, George Mason University, Virginia. Lilla participates in the Hungary Foundation’s Liberty Bridge Program and conducts research in social media regulation and regulatory approaches. Formerly, Lilla was a senior counselor on EU legal affairs at the Ministry of Justice and she has been a researcher and lecturer at the University of Miskolc (Hungary), Institute of European and International Law for five years, where she taught European Union law. Lilla obtained her Ph.D. degree in 2019. The topic of the dissertation is the legal issues of the withdrawal of a Member State from the EU.

Her current research interests cover the legal dimensions of Brexit, the interpretation of the European Way of Life, and the perspectives towards social media regulation in the USA and in Europe.

Grzegorz BLICHARZ: Platform Workers as ‘Freedmen’: Reflections on the EU Proposal

From a European perspective, the working conditions of digital platform workers are a matter of great concern. The crisis caused by the current pandemic has dramatically increased the number and value of services rendered via digital platforms, most notably the delivery of services and online services themselves. Currently, there are 24 million EU platform workers, and the estimated value of services delivered via digital platforms reaches €14 billion. After gathering comments and suggestions from the public based on a preliminary paper, by the end of 2021, the European Union proposed specific legal instruments that aim to improve the working conditions associated with platform work – EU directive of 9.12.2021, 2021/0414 (COD). In order to justify them, the European Parliament and the European Council appealed to the right of every worker to working conditions which respect their health, safety, and dignity (Art. 31 of the Charter of Fundamental Rights of the European Union). The EU legislator wants to presume an employment relationship whenever a digital labor platform “controls” the performance of work as defined in Article 4 paragraph 2 of the directive. A broad understanding of “controlled work” allows the application of certain worker standards of protection.[1]

As J.M. Puyol Montero puts it clearly “[t]he first social laws were born out of a desire to protect the human dignity of workers, particularly of the most vulnerable workers, in the exercise of their work”.[2] The appeal to human dignity revolutionized the fundamental rights foundations of labor relations in the 19th and 20th centuries which echoed the recognition of equality of every person. It urged the state to interfere with contracts for labor leading to a new branch of law – usually called labor law – aimed at balancing employee-employer relations and ensuring decent working conditions. A similar phenomenon of both recognizing a subjective element (worker’s protection) in the performance of services and a multifaceted bundle of contracts allowing to use work and services rendered, however, has its roots in ancient Roman law, more specifically in locatio conductio (A contract for lease and work), and most broadly concerns the atypical and highly-regulated provision of services by ‘freedmen’ to patrons (operae libertorum). There is a certain structural similarity between the activities of the freedmen and platform workers. It has already been confirmed that protective regulations of freedmen functionally resemble social rights granted under labor law, and they often result from humanitarian reasons.[3] Slave-work, freedmen services, and free men services played a major role in providing services in ancient Rome. It was the services of the freedmen that attracted Roman jurists particularly, which may indicate their social importance.[4] A specific, long-term relationship – based on trust and friendship – between a freedman (subject to manumission) and his former owner existed at that time. For freedom and social protection, the person subject to manumission was to provide certain services free of charge on the basis of a contractual obligation, which were implemented by stipulatio or oath (iusiurandum liberti). The imposition of duties on freedmen gave the access to free and often good quality services provided by trusted persons and patrons were allowed to hire out (locatio conductio) such services of their freedmen to others.[5] This was an extremely advantageous arrangement for the former owners, so much so that the praetors decided to issue an edict against the abuse of freedmen which often put them in de facto slave-like position.[6] The Roman example shows that rendering services may require the institution of certain precautions and leveling of the parties concerned neither with having modern concept of labor law nor extending the idea of contract for labor, which may lead us to rethink other types of contracts which might serve this goal. Anthropological considerations – the recognition of what a human person is and what goods are considered to be essential for their life – constitute the universal framework for legislation and jurisprudence, present also in Roman law.[7] Perhaps heading in a similar direction, the EU proposal on platform work at issue here offers a mere presumption of employment bond. Nevertheless, it may easily become a new test for the existence of an employment bond which could interfere too heavily with the freedom of contract and the current contractual scheme of private law. We must note that the same issues can be addressed by different nation-states in various ways, according to which side of the problem they find emphatic: they can side either with freedom of contract, invoking strong separation and difference between bona fide employment relationships and civil-code based service contracts which do not entitle to protection measures; or, on the other hand, with the general concept of protecting those who work under certain circumstances, and so including platform work within this realm and regulating it, as well as imposing specific protective duties on the suppliers of such work from the point of view of fundamental, human rights, such as dignity. Some states put more stress on functions of control and on soft measures such as audits or requiring skills certificates to operate in the market. At the EU level, there is fierce discussion over freedom of movement versus freedom of business (protection of competition) which boils down to whether platform workers indeed are workers employed by their suppliers or are rather self-employed individuals merely rendering services to their suppliers. As for now, the EU would seem to believe in finding a compromise between the two approaches, i.e., between the high-protection and no-duties approaches.

Today, a worker’s right to protection of the goods listed in Article 31 CFR has its basis and source in human dignity (Article 1 CFR), and, as a result of this, dignity is mentioned twice. As one of the goods protected under Article 31, however, dignity is listed on an equal level with the other goods, not given prominence, whereas in Article 1 it is primordial. The subtle ambiguity of dignity as applied both in labor law and in constitutional law appears not only in this act but also in all legal orders, where human dignity shines as the overriding constitutional principle. In the Polish legal scholarship and jurisprudence, discussion is focused on the relation between the constitutional principle of human dignity and the dignity at work regulated in Art. 111 of the Polish Labor Code: “The employer is obliged to respect the dignity and other personal rights of the employee”. In German labour law, protection of dignity is expressed with regards to harassment in general and sexual harassment in particular under §3 of General Act on Equal Treatment of 14th August 2006. The doctrine of labor law explicitly states that the dignity mentioned in the famous triad of employee goods refers specifically to dignity at work. What this actually means is, however, debatable. On the one hand, Art. 36 “is silent as to what measures are necessary to comply with this right”;[8] it simply reinforces the importance of human dignity simpliciter (Art. 1 CFR). More outspoken is the “twin” Article 26 of the European Social Charter (Revised, ESCR), which refers to dignity targeted to provide respect and honor towards the employee as a human being – towards his or her special position in the cosmos.[9] This has a different meaning from the fundamental human dignity so widely celebrated nowadays, which in Art. 31 CFR is treated relationally and reduced in effect to protection against bullying and harassment.[10] On the other hand, the reference to dignity in Art. 31 is considered as a safety valve, an open clause, which allows for the many ways in which workers can be protected to be extended freely, as well as the requirements of decent work to be applied also to other persons providing work, i.e. those not qualified as employed under an employment contract[11], as we see in the case of the discussed directive addressed to platform workers.[12]

Today, the constitutional obligation to provide healthy, safe, and secure working conditions is implemented through labor-law regulations, and in the case of service contracts only in specific types this obligation is particularly required. In Poland, for example, the labor code (Article 304. § 1 of the Polish Labor Code) imposes such obligations in civil-code contracts under specific circumstances only;. Polish law imposes the obligation of the observance of health and safety rules in the case of service contracts when a person employed under a service contract works at a workplace designated or organized by the employer, even if an employment relationship does not bind them or if the employer is not an employer as defined by labor law—moreover, Article 304. § 3. of the Labor Code imposes this obligation accordingly also on entrepreneurs who are not employers (within the meaning of the Labor Code) and who organize work performed by natural persons on a basis other than employment relationships or by self-employed persons. In contrast, in English common law such protection must be provided only when a service contract is performed at the client’s site.

In Roman law, the obligation to protect a worker appears for the first time on the occasion of the mercennarius, and so concerning those who perform hired work as part of locatio conductio. It turns out that the rules of Cato had already contained indications that in the case of the mercennarius certain factors should be taken into consideration – time, age, illness, and work breaks. However, when we look at the main body of Roman law – Justinian’s Digest – solutions protecting workers are rarely mentioned under locatio conductio because the emphasis is on the services of freedmen. Together with the phenomenon of freedmen who provided operae for their patrons under the contract of stipulatio and also for third parties within locatio conductio, in Rome, there were various kinds of services previously rendered only within the noble commission contract (mandatum): medical services, teaching, etc. Both hired workers and freedmen were protected with similar measures due to the unifying concept of work (operae). Paul, a Roman jurist of 2nd c. AD, argued that the type of freedmen’s services offered to the patron should be assessed in accordance with the age, status (dignitate), health, need way of life, and other such considerations of both parties (Justinian’s Digest – D. 38,1,16, Paul, Edict, book 40). Neratius, a Roman jurist of 1st-2nd c. AD introduces a subjective element[13] that the performance of services depends on the character of the person performing them (existimatio edentis), and explains that only those services are to be performed which befit his position (dignitati), abilities, habits, and occupation (D. 38,1,50, Neratius, Replies, book 1). In the case of operae libertorum, the services and labor provided were in addition to the normal activities of the freedmen, and the protection of freedmen expanded in the cases when freedmen were dedicated fully to the patron and had no time for carrying their own businesses. As for the services provided within the platform work, these are either an addition to normal work or become the main source of income. There are fears that, when they become the main source of income, they will lead to huge uncertainty – a most precarious form of work – “a new precariat class of workers who have no job security, are slaving away for poor pay”.[14]

We may make a similar comparison to platform workers, but not with regard to all categories of platform workers. Just as the contract of locatio conductio served not only to provide work but also to provide specific services (especially those of a variety of craftsmen), so is the case with platform workers: we may distinguish between various services intermediated by the various platforms. Protection could be extended without requiring an employment relationship but merely based on a service contract and the unifying concept of work (already present in EU law). Protection could be extended only to specific types of work, e.g., with regard to the workplace and time organized by the platform or by the client; provided on the client’s site; provided upon the call/demand of the platform, etc., etc. (these provisions resemble the Roman patron’s allowing freedmen services to third parties). Protection need not necessarily be extended to all platform workers but rather only as it would seem reasonable according to the circumstances: online platform workers are more independent and flexible, while on-site platform workers require more protection. However, we note that the term ‘workplace’ needs to be understood broadly, i.e., include physical workspace and virtual workplaces.

To complement this safety valve, there are also plans to introduce a special category of “economically dependent self-employed” into the Polish Labor Code, which would serve to stabilize the situation of individual entrepreneurs who enter into quasi-employment relationships and thus to reduce the phenomenon of labor exploitation based on formally B2B relationships that nevertheless lead to an actual employment relationship. In this case, creating a “third” way of employment should be approached with caution. It has been used in some countries for a long time (Canada) or for some time (Italy), but due to the growing phenomenon of sharing economy and especially gig economy, the necessity of introducing a new “third” form of employment has been raised in many countries for some time. Meanwhile, recently, courts, legal doctrine and legislators in other countries are choosing to qualify even such a relationship as an employment relationship. In this regard, both national and international courts continue to resolve specific cases in a casuistic manner, once attributing to employment the nature of a contract of employment, while at other times maintaining its civil law status. The interpretation of the employment relationship covering relations that serve to “conceal” the employment of an employee will be conducive to greater regulatory clarity and will protect us from legislative inflation and problems with the application of new legal constructs.

Today, protection extends from employment contracts to service contracts, so the situation at the historical roots of protective provisions has been reversed. Whereas in the Antiquity, the protection of workers was developed historically within service contracts and was seen as inherent to them, today these origins have been forgotten. In fact, many of the protective laws were based on Roman law on respect for human nature, even if taken pragmatically (not based on the human dignity concept unknown to them) and sometimes solely on the basis of aequitas (equity) on natural law. To sum up, further investigations into Roman law’s[15] way of accommodating different contractual schemes for using other’s work and services can give us some interesting points to consider as regards how to set up the situation of people, who provide services in different contractual configurations today, which pose a problem for ensuring decent working conditions without expanding highly regulated employment bond and curtailing private law arrangements while at the same time realizing the violation of certain human rights.[16]

[1] Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two of the following:
(a) effectively determining, or setting upper limits for the level of remuneration;
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
(c) supervising the performance of work or verifying the quality of the results of the work including by electronic means;
(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
(e) effectively restricting the possibility to build a client base or to perform work for any third party.
[2] Jose Maria PUYOL MONTERO, “Dignified Work and Dehumanization of Work. Some Reflections On The Prehistory of Labor Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 130.
[3] W. Waldstein, Operae libertorum. Untersuchungen zur Dienstpflicht freigelassener Sklaven, Stuttgart 1986, p. 400, 403.
[4] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 144–145.
[5] Idem, p. 153–154.
[6] Idem, p. 147–150.
[7] Franciszek LONGCHAMPS DE BÉRIER, “Persona: Bearer of Rights and Anthropology for Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 53.
[8] Tobias LOCK, “Article 31 CFR”, in M. KELLERBAUER, M. KLAMERT and J. TOMKIN (eds), The EU Treaties and the Charter of Fundamental Rights, Oxford, 2019, p. 2189;
[9] Article 26 – The right to dignity at work
With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:
1 to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct;
2 to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.
[10] Tobias LOCK, “Article 31 CFR”; Ellen PINKOS COBB, Workplace Bullying and Harassment: New Developments in International Law, Abingdon-New York: Routledge, 2017, p. 6.
[11] Brian BERCUSSON, European Labour Law, Cambridge, 2009, p. 380–381; Leszek MITRUS, “Godność jako podstawa aksjologiczna praw pracowniczych”, in M. SKĄPSKI, K. ŚLEBZAK, Aksjologiczne podstawy prawa pracy i ubezpieczeń społecznych, Poznań, 2014, p. 140; 142.
[12] Cfr. The whole argument on dignity, G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, in Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).
[13] Thomas A.J. McGINN, “Hire-Lease in Roman Law and Beyond”, AHB 27 (2013), p. 178.
[14] Joep CORNELISSEN, Magdalena CHOLAKOVA, “Profits Uber everything? The gig economy and the morality of category work”, Strategic Organization (December 2019), p. 8.
[15] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 134–162 and G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, , in: Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life , J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).

[16] The paper has been made possible thanks to the National Science Centre (Poland) PhD holder Grant– Sonata 14 no. 2018/31/D/HS5/01951.

Grzegorz Blicharz, PhD is Assistant Professor at the Chair of Roman Law at the Faculty of Law and Administration, Jagiellonian University in Kraków, Poland, where his work focuses on Roman law, comparative law, European legal tradition, and governing the commons. He serves as co-editor of the Forum Prawnicze law journal and has held visiting appointments at the University of Oxford (2020) and Antonin Scalia Law School at George Mason University (2021).