Reply to Robert Alexy's critique of the internet balancing formula

• Date: 01 March 2019
• Published date: 01 March 2019
• DOI: http://doi.org/10.1111/eulj.12313

SPECIAL ISSUE ARTICLE

Reply to Robert Alexy's critique of the internet

balancing formula

Mart Susi*

1|SCOPE OF THE ARTICLE

During a seminar at the European Commission in June 2017, I introduced for the very first time the idea of the Inter-

net Balancing Formula (IBF)—a mathematical tool to increase the rational element of balancing online. Subsequently,

during 2017 and 2018, the IBF has been introduced at several lectures at universities in South America, Europe and

Australia. The current special issue of the European Law Journal contains an article that provides the theoretical

background and presentation of the IBF itself to a larger audience for the first time. The current special issue of

the European Law Journal also contains a critical review of the IBF by Professor Robert Alexy, who compares

the IBF to his Weight Formula, points out the similarities between the two formulas and questions some aspects

of the IBF. I have the privilege of replying to Robert Alexy's critique in the present reflection, realising that the

discussion regarding the capability of the IBF in bringing order to legal thought in the digital domain will continue

and expand.

2|ROBERT ALEXY'S CRITIQUE

My reply to Robert Alexy will focus on those aspects he devotes most attention to when analysing the IBF: whether

the concept of Internet vulnerability refers to the abstract weight of privacy or the intensity of interference; the

concretisation thesis; and the element of empathy. I agree that these points are in need of further discussion.

2.1 |Internet vulnerability

Robert Alexy indicates that Internet vulnerability in the IBF is a constant, specifically it has the value 1. As all other

elements are variables, this element is different. Having noted the apparent aspect that through Internet vulnerability

the weight of the right to privacy relative to freedom of expression is enhanced, Alexy then proceeds to question

how this is to be understood in light of the Weight Formula. Alexy suggests two constructions: first, that the constant

V (1) can be understood as giving higher abstract weight to the right to privacy, and second, that it is an expression of

an enhancement of the intensity of interference with the right to privacy. Alexy rejects the first alternative as follows:

An abstract weight can only be attributed to the right to privacy as such. If it were attributed to the right

to privacy under certain conditions—in our case, communication on the Internet—it would not any longer

*

Professor of Human Rights Law, Tallinn University

DOI: 10.1111/eulj.12313

Eur Law J. 2019;25:221–225. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 221