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YSEC Yearbook of Socio-Economic Constitutions 2021 pp 33–58Cite as

The Freedom to Conduct a Business as a Counterargument to Limit Platform Users’ Freedom of Expression
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The Freedom to Conduct a Business as a Counterargument to Limit Platform Users’ Freedom of Expression
Berdien B. E. van der Donk
Chapter
First Online: 12 March 2022
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Part of the YSEC Yearbook of Socio-Economic Constitutions book series (YSEC,volume 2021)

Abstract
This chapter focuses on platforms’ protection against (unjustified) interference with the free drafting of house rules, viewed through the lens of European fundamental rights protection. It discusses the difference in the protection of two fundamental rights in the European Charter of Fundamental Rights: article 16’s freedom to conduct a business and article 17’s right to property. The articles’ subject of protection (‘the essence of the right’) will be mapped by analyzing the Court of Justice of the European Union (CJEU) case law between, respectively, 1974 and 1979 until 2020, and the outcome of this analysis will be applied to the process of running a platform. It will show that article 16, rather than article 17, covers platforms’ house rule drafting. However, it is unlikely that restrictive measures will interfere with the essence of article 16. Measures limiting house rule drafting can therefore be justifiable.

To be justifiable, the measures must live up to the principle of proportionality. Therefore, subsequently, the question arises whether potential measures live up to this principle. To prevent a purely normative way of answering that question—due to the fact that a standardized test does not exist—the unfairness test of the Unfair Contract Terms Directive will be used as an interpretational guide. It is concluded that measures limiting a platform’s contractual freedom can, and most likely will, be justifiable to protect platform users’ freedom of expression. That opens the door for future legislation.

Outside the direct realm of platforms, this chapter demonstrates that the freedom to conduct a business has been reduced to an empty shell, or rather a shell that has never been inhabited. Apart from the situation where an undertaking would be able to demonstrate that a proposed measure would mean the end of the business, the freedom to conduct a business does not provide any effective protection.