ABSTRACT
Can the principle of fairness serve as a scalable legal tool for enforcing fundamental rights horizontally against powerful digital platforms? This paper explores how fairness duties should be directly proportional to power imbalances in the digital economy, where a few private actors – Big Tech in particular – act as de facto gatekeepers of users’, consumers’, and citizens’ fundamental rights. In such contexts, dependence on these entities is so profound that their power rivals, and in some cases mirrors, that of states.
The legal concept of fairness, while traditionally linked to other principles such as transparency and lawfulness, remains underdeveloped as an autonomous normative tool in privacy and data protection law. This paper reframes fairness as a fundamental rights principle, with particular reference to Article 8 of the EU Charter and Article 5(1) of the GDPR, while also drawing parallels with US privacy discourse, where concepts like loyalty are gaining traction. It argues that fairness should play a broader role, one grounded in dignity and empathy, by counterbalancing structural power asymmetries in digital contexts.
Building on Martha Fineman’s theory of vulnerability and Martha Nussbaum’s capabilities approach, the paper defines power imbalance as the ability to satisfy, enable, or deny others’ fundamental needs and rights in an exclusive or quasi-exclusive manner. It proposes a ‘concentric layers of power’ model, in which the scope and intensity of fairness obligations expand with the degree of asymmetry. In basic peer-to-peer interactions (layer one), fairness resembles the principle of ‘do no harm’. In peer-to-peer contracts (layer two), it merely requires avoiding malicious deception, while in consumer-professional settings (layer three), it requires proactive protection against indirect harms. In oligopolistic or quasi-monopolistic contexts (layer four), fairness demands active measures to ensure access to fundamental rights. At the outermost layer (layer five), where the actor holds state-like power, fairness evolves into a duty to safeguard fundamental rights in their entirety.
The paper critically examines how Big Tech platforms are transitioning from dominant market actors (layer three) to entities exercising quasi-public functions (layer four), influencing rights such as privacy, data protection, freedom of expression, and identity formation. This shift necessitates a rethinking of fairness not just as a contractual or procedural principle, but as a scalable and dignity-oriented normative framework for the horizontal enforcement of fundamental rights. The paper concludes by advocating for a dynamic, empathy-based interpretation of fairness, one that adjusts to the power asymmetries at stake and embeds a renewed commitment to protecting the vulnerable in digital societies.
Malgieri, Gianclaudio, Scalable Fairness (June 17, 2025), ACM FAccT 2025 Proceedings, forthcoming.
Leave a Reply