Public Law Implications of the Digital Attention Economy

The business model of some of today’s largest, most valuable, and socially influential companies such as Google (Alphabet), Facebook (Meta), and Twitter can be described as capturing human attention and selling it to advertis­ers. Using powerful AI and sophisticated behavioral science and psychology, their services are optimized to max­im­ize the attention spent by users. Despite great positive potentials of these services, this systematic and highly effective capture of human attention has problematic effects, including – at the individual level – loss of personal autonomy, mental health impacts, and challenges to the development of one’s personality, and – at the societal level – polarization and reinforcement of hate speech, conspiracy theories, and fake news.  This interdisciplinary project aims to explore the legal implications of the digital attention economy, focusing on German constitutional law as well as European and international public law.
Two main questions will be addressed in this context. The first is whether and to what extent the state is author­ized to intervene in the digital attention economy. This raises more fundamental issues such as the problem of the legitimacy of paternalism, the relationship between public and private spheres, and to what extent the state is obliged to maintain ethical neutrality. The second question is whether the purposeful, systematic, and highly ef­fec­tive capture of users’ attention concerns fundamental rights of the German Basic Law and of international funda­men­tal rights instruments and, if so, whether this leads to third party effects or a state duty to protect. Essential issues to be addressed here include the autonomy concepts underlying the respective fundamental rights, the rele­vance of empirical findings about the human condition in legal interpretation, and the notion of manipulation, in­cluding its legal implications and relationship to related phenomena like persuasion.
While certain problems caused by social media have been discussed at length (eg data protection, hate speech and threats to freedom of expression and information), the aspect of human attention – particularly manipulation of attention and its effects – has been largely overlooked. Drawing from legal as well as philosophical, psychologi­cal, and behavioral science literature, this project lies at the intersections of the Department’s tripartite research agenda, ultimately aiming to initiate and refine the discussion of this increasingly relevant issue in the German-language public law debate.