Mart Susi's internet balancing formula

• Date: 01 March 2019
• Published date: 01 March 2019
• DOI: http://doi.org/10.1111/eulj.12314
• Author: Robert Alexy

SPECIAL ISSUE ARTICLE

Mart Susi's internet balancing formula

Robert Alexy*

1|INTRODUCTION

Mart Susi has proposed a mathematical formula that claims to make possible balancing in the digital dimension

performed by private online companies: the Internet Balancing Formula (IBF). This balancing concerns conflicts

between the freedom of expression of users of online portals and the personality rights of those who are

affected by what is publ ished about them in the on line portal. In terms of cl assical conceptio ns of constitutional

or human rights, thi s is a case of the horizon tal effect of these ri ghts. But the classica l or offline horizon tal

effect concerns a triangle with two private subjects at the bottom and the state at the top. The non‐classical

or online conception of th is horizontal effect pla ces a third private subject at the top of the horizontal e ffect

triangle, the private online company. It becomes a completely private triangle. It is highly contested whether

such completely pri vate triangles are com patible with the pri nciples of a democrati c constitutional st ate at all,

and, if they are, at which point the state has to be reintroduced in one way or another. But this question of

the constitutional distribution of competences or powers shall not be our concern here. Rather, our concern

is the Internet Balancing Formula as such.

Susi characterises his project as follows: ‘The article will claim that the Internet Balancing Formula will increase

the rational element of balancing online.’

1

This increase of rationality is possible, Susi argues, because the Internet

Balancing Formula is a ‘mathematical formula’

2

that allows artificial intelligence to operate in online balancing. To

be sure, online artificial intelligence balancing is different in important aspects from offline human intelligence

balancing. The time available for the two kinds of balancing, ‘luxury of utilising time’in offline balancing and ‘short-

ness of time’in online balancing,

3

is a fundamental source of difference. One of Susi's main theses is that this

fundamental difference is not connected with the distinction between rationality and irrationality. Rather, he con-

nects it with a distinction between ‘rationality in the narrow and wide sense’.

4

Mathematical formulas have been rare in law up to now. I have attempted to introduce ‘order into legal thought’

5

in the area of balancing by means of a ‘Weight Formula’, first published in 2002 in the Postscript of A Theory of Con-

stitutional Rights.

6

Susi says that his Internet Balancing Formula (IBF) ‘is inspired by the Weight Formula (WF)

*

Faculty of Law, Christian Albrechts University, Kiel, Germany. The author would like to thank Stanley L. Paulson for suggestions and advice on mattersof

English style. The author kindly acknowledges the financial support of a research grant on ‘The Role of Proportionality in Constitutional Adjudication’(15‐

23955S) awarded by the Grant Agency of the Czech Republic.

1

M. Susi, ‘The Internet Balancing Formula’, this issue, 198–212, 199.

2

Ibid., 203.

3

Ibid.

4

Ibid., 206.

5

A. Barak, The Judge in a Democracy (Princeton University Press, 2006), 173.

6

R. Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford University Press, 2002), 408–409.

DOI: 10.1111/eulj.12314

Eur Law J. 2019;25:213–220. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 213