Public Rules of Recognition of Platform Standards

Abstract

The distinct normative quality of platform standards provides for conflict with the normative claims of national legal systems. Now that a first wave of legislation and litigation concerning such standards has subsided, the paper investigates how state-based legal systems respond to, recognize or constrain the normative orders that platforms built. In a first step, it applies the concept of transnational law to the standards set by digital platforms, situating platform governance within a theoretical framework that recognizes the global reach and normative force of these standards. In a second step, the paper shifts the focus from the platforms' normative orders to the way public legal systems respond to and recognize those orders. Drawing on a variety of legislative and judicial responses from the EU and the US it explores the abstract criteria under which state-based laws and courts acknowledge platform standards as a form of normative ordering. From the analysis, elements of so-called public rules of recognition emerge that indicate when platform standards may coexist alongside national legal frameworks as a distinct normative order.