The use of self-regulatory or privatized enforcement measures in the online environment can
give rise to various legal issues that affect the fundamental rights of internet users. First,
privatized enforcement by internet services, without state involvement, can interfere with the
effective exercise of fundamental rights by internet users. Such interference may, on occasion,
be disproportionate, but there are legal complexities involved in determining the precise
circumstances in which this is the case. This is because, for instance, the private entities can
themselves claim protection under the fundamental rights framework (e.g. the protection of
property and the freedom to conduct business).
Second, the role of public authorities in the development of self-regulation in view of certain
public policy objectives can become problematic, but has to be carefully assessed. The
fundamental rights framework puts limitations on government regulation that interferes with
fundamental rights. Essentially, such limitations involve the (negative) obligation for States
not to interfere with fundamental rights. Interferences have to be prescribed by law, pursue a
legitimate aim and be necessary in a democratic society. At the same time, however, States
are also under the (positive) obligation to take active measures in order to ensure the effective
exercise of fundamental rights. In other words, States must do more than simply refrain from
interference. These positive obligations are of specific interest in the context of private
ordering impact on fundamental rights, but tend to be abstract and hard to operationalize in
specific legal constellations.
This study’s central research question is: What legal limitations follow from the fundamental
rights framework for self-regulation and privatized enforcement online?
It examines the circumstances in which State responsibility can be engaged as a result of selfregulation
or privatized enforcement online. Part I of the study provides an overview and
analysis of the relevant elements in the European and international fundamental rights
framework that place limitations on privatized enforcement. Part II gives an assessment of
specific instances of self-regulation or other instances of privatized enforcement in light of
these elements