Everybody Wants To Rule the World: The Relevance of the Rule of Law for Private Law in the Context of Algorithmic Profiling of Online Users

The rule of law is an elusive concept, and its fluidity lends itself to multiple interpretations. Different accounts connect various core elements—‘desiderata’—under this universally recognised concept. However, there is a consensus (albeit implicit) that the rule of law is essentially a public law concept, of only marginal concern to private law. This paper departs from this understanding and suggests that this presumption is a misperception. The rule of law does not concern only the regulation of powers and arbitrariness between individuals and the State, but it operates also in the relationships between private individuals. In particular, with the flare-up in recent years in the use of machine learning algorithms to profile online users (in order to predict their behaviour and tailor recommendations and searches to their preferences), private actors (i.e. online platforms) have obtained a super-dominant position both in the collection of data and development of the technology, in the digital (eco)systems in which they operate. This paper aims to prospectively assess the duplicitous relevance that algorithmic profiling has for the protection of fundamental rights from a private law perspective (e.g. right to privacy, right to not be discriminated, freedom of expression) and for the self-appointed power of online platforms to self-regulate their contractual relationships with users, in the digital markets. Conversely, it also discusses the relevance of the rule of law for private law relationships in its function of stronghold for the protection of fundamental rights. This value, on one side, creates legal guardrails around private self-regulation of online platforms, and on the other side, it secures the respect of fundamental rights of users from algorithmic profiling by online platforms. The paper concludes with the need to re-evaluate the State’s power to limit private freedom and interfere in parties’ autonomy in cases where fundamental rights are seriously at stake.