The internet balancing formula

• Author: Mart Susi
• Published date: 01 March 2019
• Date: 01 March 2019
• DOI: http://doi.org/10.1111/eulj.12308

SPECIAL ISSUE ARTICLE

The internet balancing formula

Mart Susi*

Abstract

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.

1|INTRODUCTION

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 dimension—the absence of morality

and the impossibility of avoiding arbitrariness—can 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;25:198–212.wileyonlinelibrary.com/journal/eulj