Seminar Private Powers and Rule of Law: conclusions

Rafael Bustos Gisbert Professor of Constitutional Law at the Complutense University of Madrid. Member of the Venice Commission for Spain

January 7, 2025

I

On 28-29 November 2024, the Centre for Political and Constitutional Studies (CEPC) and the Venice Commission jointly organised the seminar ‘Private Powers and the Rule of Law’. This seminar is one of the results of the close cooperation between the CEPC and the Commission, which has led in the past to two seminars: on bicameralism (2023) and on Constitution and War (2024).

The main objective of the seminar, as stated in the concept note, was to reopen the debate on the relationship between private and public powers and the mechanisms of governance and participation on the basis of an in-depth knowledge of the theory of political representation, the rule of law and human rights.

To address these issues, the seminar was structured in five panels. The first Panel (“New” Private Powers: globalisation and digitalisation) had as speakers Ms Uvarova, Mr Ibañez and Mr. Macías. The speakers of the Second Panel (Private Power and the Rule of Law in Common Constitutional Traditions of the Member States of the Venice Commission) were Mr Pinelli and Mr Arzoz. These two panels served as a general introduction to the issues raised by the emergence of new global private powers before going into the effects over on the three dimensions of the Council of Europe’s objectives: Human Rights (Panel Three: Ms Pírková, Ms Costas and Ms Ávila), Democracy (Panel Four: Mr Papandréou, Mr López Aguilar and Mr Bellini) and Rule of Law (Panel Five: Mr Tuori, Mr Sánchez and Ms Ní Mhainín).

As Simona Granata-Menghini pointed out in her opening speech, the issues addressed at the seminar are absolutely relevant today. Globalisation and digitalisation have dramatically changed the balance between public and private powers. A change that represents a huge challenge to the fundamental values on which both the Council of Europe and the Venice Commission are founded. A challenge that will be addressed in the update of the Rule of Law Checklist currently under preparation within the Venice Commission. In fact, three of the members of the Working Group in charge of the update were present during the Seminar (Mr. Tuori, Mr. Cameron and Mr. Bustos). In this respect, a first conclusion can be drawn from this seminar. The seminar was a privileged forum for reflection. The quality of the speakers, the richness of the debates and the wise management of the panels by the chairpersons (Ms Llaneza, Ms Biglino, Mr Rubio, Ms García Guitian and Mr Cameron) provided a wealth of ideas, reflections and extremely useful proposals for updating the Checklist.

It is impossible to give an account of all the presentations and their wealth of content in this short blog entry. In these conclusions, therefore, I will try to order the opinions and ideas put forward along three axes.

II

The first axis has to do with complexity. A complexity that manifests itself in several dimensions of the main subject addressed. Firstly, complexity in the processes underlying the transformation of private powers. Both globalisation and digitalisation are complex processes that are, moreover, deeply interconnected when we talk about private powers. Secondly, complexity in the different types of private actors that are born under the umbrella of these processes. There are great difficulties in trying to draw up a typology of private actors that can condition or affect human rights, democracy and the rule of law. Thirdly, the complexity is compounded by the great speed of change in a digital and global world. Law is not a tool designed to anticipate problems, but to respond to conflicts that have already arisen. In a context of dizzying change, it is difficult for law to keep up with the pace of change. Fourthly, the absence of a common language between lawyers and experts in digitisation or artificial intelligence is worrying. Without a common language, it seems difficult to establish a dialogue between legal needs and technical developments in the digital world. Fifth, the territorial scope of the new private powers exceeds the state. But both democracy and the rule of law are built on the bedrock of the state. Any attempt to extend their rules to private powers will have to consider their global dimension. Last but not least, complexity manifests itself in the far-reaching effects of the emergence of global and digital private powers. Effects that, as underlined throughout the seminar, may even undermine the civilisational basis of our societies.

To deal with this complexity, a number of proposals were put forward during the seminar. Three of them are worth highlighting. 1) Multifaceted changes require multifaceted responses. It seems a mistake to look for global solutions or proposals. A more nuanced approach, trying to provide answers to the different and concrete challenges might be a better strategy. 2) Responses to complexity must have a multi-level design. A design that should go beyond (without suppressing) the national level. In particular, the greater effectiveness of the European approach of both the EU and the Council of Europe was underlined. The EU has developed the so-called digital services package (Digital Markets Act -DMA- and Digital Services Act -DSA-) and the regulation of Media (European Media Freedom Act -EMFA-) and Artificial Intelligence (Artificial Intelligence Act -AIA-). In the Council of Europe, the Framework Convention on Artificial Intelligence has been drafted and the proposal of soft law standards is an ongoing task. 3) To deal with complexity, the Venice Commission seems particularly well suited. Its experience in standard-setting on human rights, rule of law and democracy, combined with its global approach and dialogical working methods, make it a privileged forum to address the issues raised by this new complex reality.  The updating of the rule of law checklist could be a first step in this direction, but it must be taken into account that the rule-of-law issues do not concern only private powers when exercising public functions (which was the focus of the checklist) but also when they are acting within their own (private) sphere.

III

The second axis of the seminar was Law. The most prominent idea of the seminar was that law, as we understood it in the past, is not enough to address the challenges of the new private powers. In fact, there is a theoretical deficit in addressing these challenges. The absence of reflection on the application to private power of the rules derived from the rule of law seems evident. On the other hand, the theoretical reflection on the application to private actors of human rights norms (theories of Drittwirking, state action or positive obligations) and democracy norms (obligations of private actors to respect the basics of democracy) conducted in the past seems clearly insufficient to address the challenges posed by the new global private actors. Moreover, law has great difficulty in anticipating processes that are not foreseeable. And the future evolution of global private powers seems unpredictable. Finally, it is worth highlighting how so-called technolegality is changing both the way legal norms are produced and applied, and the form and language of the law itself.

But law is not defenceless. We can find some useful traditional tools in the past: rules to force private powers to respect human rights and democracy; anti-trust regulations; market regulations or consumer laws can provide some basis for developing strategies to restrict the ability of new private powers to jeopardise the rule of law, democracy and human rights.

In this sense, proposals were made both in the presentations and in the debates:
(1) A ‘thick’ rather than a ‘thin’ concept of the rule of law should be adopted. A substantial concept deeply linked with democracy and human rights values.
(2) A ‘tabula rasa’ approach should be avoided. On the contrary, it is essential to build the law applicable to private powers on what has already been achieved in terms of human rights, democracy and the rule of law.
(3) Therefore, there is no need for a revolution, but rather for the transformation, updating and adaptation of concepts already defined in the past. For example, in order to deal with Strategic Lawsuits Against Public Participation (SLAPPs) it will be necessary to update the doctrine of abuse of rights; the analysis of the regulation of Large Online Platforms (VLOPs) will have to be done from the point of view of the abuse of dominance doctrine; the mandatory creation within private powers of commissioners on data protection or on artificial intelligence should be linked to the doctrine of the social function of the right to property; the inclusion of specific duties on the design of new products to be respectful of human rights, democracy and the rule of law should be built on the basis of the principles of consumer protection (and of public authorities), and so on.
(4) The capacity of principles such as the rule of law, democracy and human rights as legal principles should be given greater prominence in order to fill the legal gaps that will inevitably arise in the regulation of such a changing reality as private powers in a global and digital world.
(5) In this quest to update legal concepts, it may be necessary to go beyond the traditional public/private distinction: the use of private means to achieve public objectives seems to be one of the unavoidable paths to follow in the future, and along the same vein.
(6) New concepts such as the notion of risk or the replacement of prohibitive rules by new rules of evaluation, assessment, management, monitoring, supervision, etc., must be defined. An approach in which the right, concrete questions must be asked (and answered) before rewriting the main traditional principles inspiring legal systems.

IV

The third axis of the Seminar was Democracy. A clear starting point was established: economic inequality leads to political inequality. The greater the former, the greater the latter. Globalisation and digitalisation have dramatically increased the wealth gap between new global private powers and individuals. In fact, historically very powerful private actors, fusing economic and political power (even military power) have existed before, but the combination of globalisation and digitization makes the regulation of these powerful actors nowadays much more difficult. New private powers may use a variety of active strategies to question the legitimacy of public regulation, and to make this regulation more difficult. At least, they can endanger democracy in two different ways. Directly, they can act by influencing political or electoral processes: by lobbying, by financing electoral campaigns, by corrupting politicians or public officials, or personally, through their CEOs, they can participate directly in political campaigns or even be members of elected governments. But a second, even more dangerous, indirect way can be used by private powers: the control of public debate through online platforms, digital colonisation or the technological orientation of public opinion, especially during election time. A distinction should therefore be stressed here. These new private powers linked to digitalisation and new social media represent an added danger for democracy. They can act not only as powerful new private powers due to their economic strength, but also as gatekeepers of access to public deliberation or by shaping the free formation of citizens' opinions in a permanent and non-neutral way in their own interests. Two strong images were used during the seminar to describe the effect of the new private powers on democracy: Plato's Cave and Tribalism. In the first sense, the effect on individuals of the new social media can be compared to Plato's Cavern, in which human beings are chained together looking at the shadows of reality displayed on the wall. Shadows selected by others and presented in the way they want them to be understood while citizens turn their backs on what is actually happening in the real world. This situation can only lead to forms of tribalism in which public conversation only takes place between those who look at the same shadows. Polarisation and extremism thus appear as an inevitable consequence of the domination of the public sphere by a few extremely powerful private actors. The risks posed threaten the very foundations of democracy and may involve the most dangerous oligarchisation in history.

Some interesting proposals were made at the seminar to defend democracy from these risks.
(1) A ‘thick’ concept of democracy is needed. Just as the rule of law cannot be understood as a purely formal (thin) notion, democracy must be seen as a substantial concept. Democracy is not only about elections (although free elections must be safeguarded), but also about respectful dialogue in search of consensus. A consensus built by a public opinion formed under real conditions of equality and freedom in which the will of the majority must not go unchecked. On the contrary, as the Venice Commission has repeatedly held, true democracy is not based on the principle that the winner takes all, but on the search for general agreements with full respect for the views and rights of minorities and above all on the guarantee that free and public deliberation will be respected in the future.
(2) Two classic concepts seem essential to ensure the future of democracy: transparency and accountability. But as with many legal concepts, these notions need to be updated to apply not only to public authorities or public holders of power, but also to private powers whose behaviour can undermine the democratic foundations of society and to the tools they use to increase their economic and political power. And a new concept was proposed: visibility. A notion that addresses the essential importance for citizens to be aware of who is behind these new powers and which interests (whether legitimate or not) they pursue.
(3) The new democratic context arising from globalisation and digitalisation calls for a deepening of a frank and ground-breaking dialogue between new private actors (especially large online platforms) and the public authorities. Any attempt to protect (and improve) democracy requires the cooperation and loyal involvement of the new private actors. It cannot be tackled against them, but with them. Participants felt that the EU's example of negotiating and cooperating with large private powers in the past when drafting ambitious new regulations was the right approach.
(4) Defending and enhancing democracy in this new era requires an intelligent combination of the best technologies with human control. New technologies can substantially put democracy at risk, but to fight those risks, the use of technologies is indispensable. Moreover, the permanent struggle for a better democracy should not be abandoned but rather encouraged by using the new technologies to its advantage.  Not from a naïve confidence in the natural and unquestionable benefits of technology typical of the optimism that prevailed during the birth of the internet, but from a critical point of view in which the risks posed by new technologies must be seriously considered. It is, therefore, a technology that must put citizens and democracy at the centre and whose use must be supervised and controlled not only by private powers, but also by citizens and public authorities. As one of the speakers stressed, ‘another internet is possible’. Therefore, another public and democratic dialogue is not only possible but desirable.

V

One final conclusion is clear from the seminar: the Venice Commission is in a privileged position to reflect and propose standards on the issue. Its global and European dimension, the Commission's dialogical methodology and its expertise can be important elements in making it possible to propose standards acceptable to all stakeholders, whether public or private, on this complex issue. In particular, the Rule of Law Checklist methodology seems appropriate. A bottom-up approach that does not seek to solve the ‘big’ problems, but to find small, concrete but correctly posed questions. Questions that can be the first step in the direction of redefining legal concepts and defending democracy and human rights by imposing obligations on the new private powers.

The seminar held at the Centre for Political and Constitutional Studies achieved the objectives pursued when it was designed and provided sufficient ‘food for thought’ not only for the updating of the Rule of Law Checklist, but also for the future work of the Venice Commission.

Cómo citar esta publicación
Bustos Gisbert, Rafael (January 7, 2025) Seminar Private Powers and Rule of Law: conclusions. Blog del CEPC https://www.cepc.gob.es/blog/seminar-private-powers-and-rule-law-conclusions