Private Actors with Quasi-State Power? Reflections on CELE’s Involvement with the Max Planck Institute

By Matias González Mama

CELE participated in the Platform Regulation Conference organized by the Max Planck Institute. The event featured discussions on the role of online platforms as private actors with quasi-state power and the impact of new regulatory frameworks on human rights.

On May 21 and 22, 2026, the international conference “Online Platforms: Private Actors with State-like Power?” was held in Freiburg im Breisgau, Germany._ The event was organized by the Department of Public Law at the Max Planck Institute for the Study of Crime, Security, and Law, under the direction of Ralf Poscher, and coordinated by researchers Marc Bovermann, Daniel Buchmann, and María Diory F. Rabajante. The event brought together a distinguished group of global academics, regulators, and professionals to critically analyze the transformation of technology companies into de facto authorities over public discourse and digital life.

Conference discussions centered on the legal nature of platforms’ power and the limits of current regulatory tools. There was intense debate over the concept of “corporate sovereignty” that large tech companies exercise through their traditional immunity regimes, and how some current regulations attempt to introduce various obligations to relativize those regimes and temper the power exercised by private actors. The responses provided by participants in their presentations spanned the fields of Roman law and private law, constitutional law, public international law, competition law, economic law, and integration law, among others. 

Throughout the various panels, the global trend of importing or adapting regulatory models—such as the European Union’s Digital Services Act (DSA)—to dissimilar legal and political realities, such as those in India or Indonesia, was scrutinized. Participants examined the risks that these frameworks, far from limiting private power, may end up bureaucratizing the truth, promoting “procedural fetishism,” and eroding substantive rights under the pretext of a digital constitutional order. The importance of the framework provided by international human rights law for both state and private action was also discussed, as well as the obligations—or lack thereof—that derive from it.

CELE’s Presentation: What Can We Expect from Delegated Public Functions?

As part of Panel 1, titled “Conceptualizing Platform Power”, Matías González Mama, representing CELE, presented the findings of his most recent working paper: “What We Can and Cannot Expect from the Exercise of Public Functions by Private Platforms: Lessons from Content Moderation”, co-authored with Nicolás Zara, Ramiro Álvarez Ugarte, and Agustina Del Campo.

The presentation addressed the historical transition from a phase of self-regulation and voluntary human rights commitments to the current scenario of “outsourced governance.” Under this paradigm, states impose “due diligence obligations” or “duty of care” on corporations to mitigate systemic risks. The research warns that this delegation creates a serious problem: it allows state authorities to indirectly intervene in discourse in ways they could not do directly due to constitutional and human rights restrictions on the protection of freedom of expression.

Likewise, the paper critically analyzed the transposition of the classic three-part test (legality, legitimacy, necessity, and proportionality) to the realm of automated and private moderation. It was argued that corporations lack the democratic legitimacy and internal institutional architecture—such as the separation of powers—necessary to apply these standards fairly, which undermines the very essence of users’ fundamental rights.

Concluding Remarks and the Perspective from the Global South

As we have noted in the past in other debates on the European DSA, during the conference in Freiburg we emphasized the importance of placing human rights at the center of the discussion, as well as not losing sight of the fact that the state is a risk factor for these rights that must be taken into account when regulating online speech. We pointed out that certain regulatory obligations create negative incentives that turn content moderation into a tool that can be exploited to silence dissenting or uncomfortable speech.

During the meeting, together with other participants, we emphasized that the so-called “Brussels effect” is no longer a mere hypothesis, but an ongoing process that extends the European Union’s regulatory obligations to other parts of the world. In light of this reality, it is essential that academia and civil society in the Global South actively participate in these international forums. Understanding the conceptual sophistication and design flaws of these regulations is vital to avoiding uncritical legal transplants that weaken, rather than strengthen, democratic and human rights safeguards in our regions.

We at CELE extend our deepest gratitude to the Max Planck Institute for organizing this conference and creating an intellectually stimulating environment, as well as to all participants and keynote speakers for their comments and the discussions held, which were both challenging and enriching.