The internet balancing formula

Published date01 March 2019
Date01 March 2019
The internet balancing formula
Mart Susi*
The Internet Balancing Formula (IBF) is a mathematical instrument to increase the rational and trans-
parent aspects of balancing conflicting human rights online. It is based on the relative weight and
intensity of conflicting rights. The numerical value of these rights is arrived at by applying mathemat-
ical scales to various input elements. This formula is easy to use and could be applied globally by pri-
vate online stakeholders. Robert Alexy has entered into debate with Susi, pointing out similarities
and differences between his Weight Formula and the IBF, and advancing the concreteness thesis.
Alexy views the Weight Formula as general and abstract, whereas the IBF is specific and particular.
Both Alexy and Susi are of the opinion that such formula is highly needed to respond to the theo-
retical and practical uncertainties and divergent practices of online stakeholders. Susi replies to
Alexy's critique in a separate article.
Balancing has swiftly emerged as the dominant discursive practice for reacting to conflicts of competing fundamental
rights in the digital dimension. A discursive practice of stakeholders, endorsed by international courts and legislators
and occasionally by academics, by itself is not sufficient to conclude that balancing is justifiable from ontic or episte-
mic perspectives. Without such justifications balancing cannot claim correctness in the digital dimension of a modern
society, as the arguments that have been raised against balancing in the offline dimensionthe absence of morality
and the impossibility of avoiding arbitrarinesscan easily lead to the rejection of balancing as a universal tool appli-
cable in horizontal Internet relationships and having the potential to bring some element of order into the predom-
inantly existentialist online realm. Such discursive practice may have developed independently from any theoretical
considerations, being driven primarily by the political understanding of the need to provide a rational tool against
abuses of fundamental rights on the Internet, or, even more pragmatically, to provide a shield for private online com-
panies against the claims that they are not concerned with the matter of fundamental rights protection.
This article will explore the question of ontic and epistemic justifiability of balancing on the Internet in horizontal
relationships by private online companies, and thereafter propose a mathematical formula for balancing conflicting
fundamental rights in the digital dimension. It will demonstrate that the Internet Balancing Formula (IBF) contains cer-
tain ontic and epistemic elements which minimise the strength of arguments usually raised against balancing as a
generic fundamental rights concept or balancing by private entities on the Internet in particular. Therefore, this
*Professor of Human Rights Law, Tallinn University
Received: 11 December 2018 Revised: 13 February 2019 Accepted: 17 February 2019
DOI: 10.1111/eulj.12308
198 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;

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