Publicizing the global town-square: social media platforms as addressees of public obligations in the United States and Germany

This dissertation analyses the legal protection the users of social media platforms, the town-squares of our times, in Germany and the United States (US) enjoy before state courts. It particularly focusses on the obligations of social networks to observe the fundamental rights of their users. The stark differences between both countries in today’s jurisprudence and regulation are traced back to the general interpretation of the functions of fundamental rights by the US Supreme Court and the German Bundesverfassungsgericht. The dissertation introduces in its Chapter 2 the constitutional jurisprudence on the effects of fundamental rights on private relationships in both countries. While the US Supreme Court has underlined its understanding of the state as exclusive addressee of constitutional obligations by its development of the state action-doctrine, the German Bundesverfassungsgericht has emphasised the role of fundamental rights as “objective value order” which not only binds the state but also affects private relationships. Chapter 3 outlines the doctrines which are applied to limit private autonomy for the benefit of the weaker contractual party in both countries. Such doctrines are either based on the market power a private entity has, such as the common carrier-doctrine in the US and obligations to contract in Germany, or rooted in the public function an entity serves, namely the public forumdoctrine in the US and the concept of public institutions in Germany. In particular the latter were historically not designed for private relationships but deploy nonetheless effects on individuals and corporations under particular circumstances. Following that, the adoption of the doctrines to the non-physical world, e.g. communication systems, is described. These developments of the legal doctrines culminate into the different approaches courts in both countries have taken for the application of public obligations to social platforms. Chapter 4 discusses legislative proposals and current regulation in the US and Germany, including proposals made on EU level. The dissertation concludes that the varying degrees of regulation reflect the respective stances the courts in both countries have taken on applying public obligations on private entities