Power beyond the public-private divide on digital platforms. After laissez-faire, time for organised checks and balances

Abstract

This contribution examines how checks and balances can be organised so that the individual freedom of users in the digital space is protected from the encroachment of platforms. Indeed, platforms are quasi-states which enjoy legislative, judiciary and executive powers. This merging of functions in the hands of one single entity illustrates the failure of the liberal attempt to set up a cyberspace free of sovereign power: Platforms are the new sovereign. Modern thinkers like Foucault and Habermas have examined how sovereigns in the past have seen their powers curtailed and the role that the birth of two distinct spheres, one public and one private, has played in this process. Traditional public economic law builds on this public-private dichotomy, leaving little room to conceptualize hybrids. Yet this paper shows that platforms are such hybrids. Building on an analysis of the activities taking place on platforms, as well as the rights at stake in platform governance, it finds that platforms' immaterial locus is both political and economic, bundling public and private powers. Hence, this paper puts forward the idea that public economic law should seek to develop mirroring hybrid counter-powers. Civil society especially should be conceptualized in the digital space, with its rights, duties and responsibilities, to foster balanced relationships between the various actors present on platforms.