Hungary finds itself caught between two contrasting constitutional approaches to platform power: the United States’ near-complete deference to private autonomy and the European Union’s regulatory turn toward accountability. This paper argues that Hungarian constitutional doctrine, with its recognition of positive state obligations, offers a potential middle path– one that neither treats platforms as immune private actors nor collapses them into state functions, but instead grounds their governance in the state’s duty to safeguard the conditions of democratic discourse.

Introduction: A New Public Sphere Without Public Norms

The foundational structures of public life are undergoing a profound transformation. Political speech, civic participation, and democratic debate increasingly take place not in state-administered spaces, but on privately owned digital platforms. Facebook, YouTube, TikTok, and X (formerly Twitter) have become essential channels of communication—modern equivalents of the public square.

Yet these platforms do not operate under constitutional norms. Decisions about content moderation, account suspension, or algorithmic visibility are governed by corporate terms of service and opaque algorithmic systems, without transparency, oversight, or judicial review. Despite this, they perform functions essential to democratic life and often exert state-like influenceover public discourse.

This raises a fundamental question: If the conditions of public communication are now shaped by private actors, are there truly no constitutional obligations? Or does Hungary’s Fundamental Law require the state to act – at least indirectly – to safeguard the constitutional values now mediated by platform infrastructure?

Hungarian Doctrine and the State’s Positive Obligations

Hungary’s constitutional framework already offers the tools to approach this challenge – if interpreted in light of today’s digital realities. Article IX of the Fundamental Law protects freedom of expression; Article VI guarantees the right to the protection of personal data and informational self-determination; and Article II enshrines the inviolability of human dignity. These are not merely defensive rights against state interference. In Hungarian constitutional doctrine, they also imply positive obligations: the state must act to protect these rights when structural threats emerge – even from private actors.

This principle was affirmed in Decision 3/2020. (I. 23.) AB, where the Constitutional Court held that concentrated private media ownership, if left unchecked, could undermine pluralism and democratic discourse. The state’s failure to regulate such conditions, the Court reasoned, may itself amount to a violation of the constitution. If this applies to media conglomerates, why not to digital platforms, which now function as dominant infrastructures of expression? The logic of the ruling suggests that platform power, too, can give rise to constitutional duties—not by treating platforms as state actors, but by recognizing the state’s obligation to preserve the conditions of meaningful public communication.

Infrastructural Power and the Architecture of Expression

The influence of platforms today is not limited to isolated moderation decisions. Their power is structural. As legal theorist Julie Cohen argues, platforms exercise “infrastructural power”: they determine the conditions under which expression, visibility, and participation occur. Through algorithmic ranking, behavioral microtargeting, and automated takedown systems, they shape not only what is said, but what is seen – and by whom.

In constitutional terms, this means that public discourse is no longer merely distorted by private influence – it is increasingly constructed within privately optimized architectures. And those architectures are not guided by constitutional values like pluralism, equality, or fairness. They are guided by engagement metrics, advertising revenue, and proprietary logic.

If the Hungarian state is constitutionally obligated to preserve the integrity of the public sphere in traditional media contexts, then that obligation must logically extend to digital infrastructures that now dominate public life. The question is no longer whether these platforms act like governments, but whether the state can remain passive while private infrastructures reshape the space of rights.

Comparative Models: U.S. Deference, EU Accountability, Hungarian Possibility

Hungary is not alone in confronting this constitutional dilemma – but its legal framework places it in a unique position between two dominant models.

In the United States, the constitutional doctrine of state action sharply limits the reach of the First Amendment. In Manhattan Community Access Corp. v. Halleck (2019), the U.S. Supreme Court reaffirmed that constitutional rights constrain only the state—not private entities, even when they perform public functions. Under this logic, platforms enjoy full autonomy over content moderation, deplatforming, and algorithmic curation, all shielded as a form of corporate speech. This consequence is a constitutional landscape where users cannot invoke free speech rights against platform decisions, leaving remedies to contract law or market exit rather than constitutional adjudication. In effect, the American model prioritizes  platform liberty over the integrity of public discourse, reflecting a deep skepticism toward imposing public obligations on private actors. This stands in sharp contrast to the European approach, which treats the systemic influence of platforms as grounds for regulatory duties aimed at protecting democratic participation.

By contrast, the European Union has adopted a function-based model. The Digital Services Act (DSA) imposes public-interest obligations on “very large online platforms,” not because they are state actors, but because their decisions have systemic impact on democracy, public safety, and fundamental rights. The DSA requires algorithmic transparency, external audits, and complaint mechanisms, reflecting a constitutional tradition that accepts the horizontal effect of rights: the idea that states have a duty to prevent private actors from unduly restricting fundamental freedoms.

Hungarian constitutional doctrine stands at a crossroads. It does not embrace the U.S. model of complete deference to private platforms. Nor does it yet fully reflect the EU’s regulatory infrastructure. But it has already been recognized that the state must act when private power threatens constitutional values. The jurisprudence is in place – the question is whether it will evolve to meet the digital challenge.

Constitutional Rights in the Platform Age: Dignity, Expression, Self-Determination

Hungary’s constitutional values provide a strong normative foundation for confronting the challenges posed by platform governance – if those values are extended into the digital sphere.

• Human dignity (Article II) implies that individuals must not be reduced to data points in opaque systems of classification, ranking, or suppression. Where decisions about visibility, content removal, or access are made without notice, explanation, or recourse, the constitutional guarantee of dignity is at stake.
• Freedom of expression (Article IX) does not only protect the right to speak—it presupposes the existence of a pluralistic and accessible public sphere in which voices can be heard. When platform algorithms systematically marginalize dissenting views or independent media, this right is undermined—even in the absence of direct state action.
• Informational self-determination (Article VI), though often treated as a data protection issue, has deeper constitutional significance. It concerns the ability of individuals to understand, influence, and contest how they are represented and acted upon in digital environments. This calls into question practices such as behavioral microtargetingand profiling without consent.

Together, these rights suggest that the state may not remain neutral when private platforms exert disproportionate control over the infrastructure of expression. Even in the United States, where constitutional doctrine largely insulates form First Amendment claims, public debate has increasingly turned toward the so-called “techlash”– a wave of political and societal backlash against concentrated platform power. Organizations such as ITIF have documented how concerns over disinformation, market dominance, and algorithmic opacity have fueled bipartisan calls for reform. While these debates have not yet shifted the constitutional baseline of state action, they underscore a growing recognition that unregulated platform power poses risks to democratic life–an insight that resonates with the Hungarian and European context, where constitutional and regulatory traditions are more open to imposing obligations on private actors.

Conclusion: Platform Governance as a Constitutional Imperative

Hungary’s Fundamental Law does not need to be rewritten to meet the challenges of the platform age. The principles are already there: dignity, freedom of expression, pluralism, and the state’s positive obligation to protect constitutional rights even when the threat comes from private power.

What is required is constitutional imagination – the willingness to apply these principles to a digital context in which public discourse is no longer hosted by the state, but constructed by corporate infrastructures. The Hungarian Constitutional Court has already taken key steps in this direction, most notably in Decision 3/2020. (I. 23.) AB, recognizing that state passivity in the face of concentrated media power may be constitutionally insufficient. That insight must now be extended to platform power.

We are witnessing a structural transformation of the public sphere. If the state continues to treat platforms as mere businesses, it abdicates its constitutional role as the guarantor of democratic discourse. But if it recognizes these platforms as infrastructures of public expression, it can begin to ensure that fundamental rights are preserved, not just from state interference—but also from private domination.

The future of Hungarian constitutionalism in the digital age will be measured not only by how it protects speech, but by how it protects the conditions in which speech remains possible.

Réka Kérész is a fourth-year law student at the Széchenyi István University, Ferenc Deák Law School in Győr, Hungary. Her main interests include Constitutional Law, International Law, and the combination of the two.