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This contribution examines how checks and balances can be organised so that individual freedoms of users in the digital space are protected from encroachment by 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 at setting 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 places 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 on platforms.
Workshop organised in Rome by Professor G. della Cananea (Common core principles of administrative law, 1st December). Summary available here: https://europeancommonwealth.org/2018/01/08/account-workshop-fin-de-siecle-administrative-law-judicial-standards-for-public-authorities-1890-1910/. Paper will be submitted later in 2018 for publication in an edited volume.
Proportionality in English Administrative Law: Resistance and Strategy in Relational Dynamics
(2021)
Proportionality is at the centre of heated debates in English administrative law. It has been adopted for matters pertaining to European law and the European Convention on Human Rights, but its use in other areas parts of English administrative law is highly contentious. While some arguments in favour or against applying proportionality in England are similar to those exchanged in relation to other legal systems (such as tensions between increased objectivity in judicial control over administrative action vs. the desirability of more limited control), other arguments are more specific to English administrative law. To understand the challenges encountered by proportionality in English administrative law, this paper adopts a contextual analysis, putting the emphasis on the relational dynamics framing the interactions between the main actors involved in the proportionality test. Paradoxically, this perspective rehabilitates the analysis of the legal techniques behind transplants such as proportionality: indeed, transplants are vehicles for legal changes in ways that go beyond the circulation of ideas across the world. Instead of being merely superficial and rhetorical, transplants engage deeply with the whole gamut of institutions and actors in a legal system, calling on them to rearticulate their implied and explicit relationships.
I-CONN Conference, 5th July, Copenhagen, Panel coordinated by C. Colombo and M. Eliantonio (“The Changing nature of the public administration; what role of judicial review?”). Paper from this presentation to be published with S Van Garsse under the title ‘Revisiting judicial review in the face of the changing nature of public administration – A case study drawn from European infrastructure projects’, submitted to European Public Law (special issue) (guest editors: Dr C Colombo and Dr M Eliantonio) (second stage of proof-reading).