Internet Creativity, Communicative Freedom and a Constitutional Rights Theory Response to ‘Code is Law’

The code that regulates cyberspace empowers private bodies to set standards of Internet access and use, which are often not visible. Content filtering, as a response to copyright infringement, or models differentiating between various data transmissions are examples of measures that have been undertaken by Internet intermediaries. Arguably, they are necessary to protect intellectual property and digital business. Emanating from private bodies, such measures are beyond the reach of constitutional rights, although they may strongly impact conditions of communicative freedom and creativity on the Internet. This paper endeavours to explore whether a theory of “constitutional rights in the private sphere” may have a case in a digital networked ecology.