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Code as a Critical Point for Internet Regulation

Code as a Critical Point for Internet Regulation

The behaviour of users on the internet is controlled to a large extent by what providers of online platforms enable them to do through a specific design of their service or by what they implicitly prohibit. It is also possible for providers to encourage certain behaviour patterns in users through the design of their user interface and to thereby gently steer the user's behaviour, using so-called nudging. The totality of these controlling factors is called ‘code’ in the debate on governance. A term, that was significantly influenced by legal scholar Lawrence Lessig with his equation ‘Code is Law’ in 1999. Moreover, the behavioural impact on society is potentially increasing due to the possibility of controlling behaviour through code and the growing relevance of internet providers. The PHD-project aims at contributing to the debate on the factor ‘code’ within the legal discourse. Furthermore, it wants to depict the normative content of code and set it into relation with the law. So far, the law has been mostly unfamiliar with explicit points of reference to react to these steering effects. On this basis, it will be examined whether or not and to what extent code can be used as a controlling factor in the sense of a rule-rule-regulation.

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Project Description

Analyses in Media Law focus mostly on regulation by law and the adoption of norms into the legal system. However, it becomes increasingly obvious – especially regarding internet related issues – that other factors have legal effects as well. In this thesis, law isn’t understood as the mono-causal factor in steering the user’s behaviour but rather in its relationship to the factors contracts, social norms and code. The thesis will focus in particular on the relationship between code and autonomy, which is safeguarded by fundamental rights. This is based on the observation that user interfaces of internet services also have a regulatory effect, and thus, can appear “normative”.  Therefore, different forms of autonomy protected by the constitution can be threatened, such as the communicative, informational or economic self-determination. Different cases – e.g. the so-called “subscription traps” where users sign up for subscriptions with hidden fees – show that existing legal arguments have little effect and no influence on user interfaces. Case studies, such as the regulation of hidden costs, will examine the opportunities of law to use code in order to develop a rule-rule-regulation.

Project Information

Overview

Duration: 2014-2016

Research programme:
RP2 - Regulatory Structures and the Emergence of Rules in Digital Communication

Third party

Contact person

Dipl.-Jur. Univ. Kevin Dankert
Junior Researcher Broadcasting & Regulation

Dipl.-Jur. Univ. Kevin Dankert

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