Fundamental rights obligations of digital corporations

Fundamental rights protect the freedom of the individual from encroachment by the government - they are defensive rights of the citizen against the state. As a rule, fundamental rights do not impose obligations on private individuals and companies. But can the obligations derived from them be transferred to companies that occupy a special position in the "digital market" due to their size? The study series "Fundamental Rights in the Digital World" addresses this question.

The study series is intended to provide clarity on the extent to which companies must actively protect fundamental rights. In addition, they are intended to make clear that users can also demand certain fundamental rights online, including directly from companies. The studies contribute to the legal and political debate on platform regulation and thus also contribute to the further development of the legal system.

WHAT ARE THE ADVANTAGES OF A FUNDAMENTAL RIGHTS COMMITMENT?

In principle, citizens and private companies are free to decide with whom they enter into contracts and what they agree on in them. However, these contracts are already subject to certain restrictions that also serve to protect the weaker party to the contract. For example, the Network Enforcement Act imposes certain obligations on social networks, and the law on general terms and conditions prevents platforms from disadvantaging users with surprising clauses in the "fine print".

However, the fundamental rights obligation goes beyond this and brings the responsibility of the platforms closer to that of the state. The state is not free to decide which laws it enacts. Rather, they must respect and protect the fundamental rights of citizens. State authorities must also take into account the fundamental rights of citizens in specific decisions. This duty is secured by procedural rules. Through the fundamental rights obligation, this duty is also transferred to companies. Companies must take the fundamental rights of their users into account when they regulate the conditions under which people can gain access to their network, how they may communicate there, etc. As with the state, this must be ensured by procedural rules. As with the state, this must be safeguarded by procedural steps.

INCEPTION STUDY: FUNDAMENTAL RIGHTS IN SOCIAL NETWORKS

What does the consideration of fundamental rights in terms of use mean in practical terms? In 2021, the German Federal Court of Justice (BGH) ruled in a landmark decision that Facebook must take the fundamental rights of its users into account and provide factual reasons for deletions and blocks. In addition, the court determined that Facebook must give users the opportunity to question sanctions. This protection is secured by procedural requirements such as a right of appeal.

The inaugural study "Fundamental rights binding obligations of social networks. How social networks must protect the fundamental rights of their users" (in German, published on 16 March 2022, PDF) focuses not only on Facebook but also on the social networks Instagram, TikTok, Twitter and YouTube. Based on previous case law, the study examines the extent to which these networks are also bound by fundamental rights and what this means in concrete terms outside of deletions and blocks.

SECOND STUDY: FUNDAMENTAL RIGHTS ENGAGEMENT OF APP STORES

The study concludes that there is a significant need to protect the fundamental rights of app users in the field of app stores. The use of apps is strongly intertwined with our exercise of fundamental rights. At the same time, app stores have the power - like the state classically - to open access to infrastructure. They unilaterally decide which conditions apply and which apps are available.

This means that the conditions are in place for which the Federal Constitutional Court and the Federal Court of Justice have assumed state-like fundamental rights obligations. Previous case law concerned soccer clubs and social networks in particular. App stores are even more important than these areas of application.

In the case of app stores, there is a triangular relationship between stores, app developers and app users. For this reason, the study also addresses the special features of the enforcement of fundamental rights for app developers. Although it is primarily the app users who are in need of protection, procedural safeguards in particular (such as a duty to be heard) only make sense vis-à-vis the app developers.

You can access the study "App Stores' Commitment to Fundamental Right" here (in German, published on 7 September 2022).