Fundamental Rights Necessarily Exercised Through Contracts and Damages from Manipulative Informational Flows on Social Media. Private and Public Enforcement in the Digital Public Sphere

Throughout modernity, the public sphere has functioned as a legal space shaped by public law. Private individuals express their thoughts, while public authorities have a constitutional duty not to censor them (negative liberty) and, at a certain point, to foster their expression by ensuring better conditions to inform and be informed (positive liberty). Today, the public sphere is primarily a private space, regulated by contractual law. A social media platform with three billion users (Facebook) operates under three billion account-constituting contracts governed by general terms imposed by the platform’s operator.