Democratic rule of law on demand? Law and trust in the digital transformation

Technological developments, not least social media platforms from US tech giants, are challenging the law. Does it have the answers that are fast enough, international enough and effective enough? In his keynote speech at the bidt event “Democratic rule of law on demand? Law and Uncertainty in the Digital Transformation,” IT law specialist Chan-jo Jun looked back more than 100 years: In 1900, political theorist Georg Jellinek described the “normative Kraft des Faktischen” (normative force of the factual) from a sociological and psychological perspective, arguing that humans tend to consider what they experience as factual to be the norm. The problem today, Jun pointed out, is that these facts are increasingly being “implemented” in the digital space – by those who set the rules, “by the tech bros,” as Jun put it bluntly. Influence is not only exerted through content, but also through ownership and power structures: tech billionaires can buy facts on the stock market, “not to make a profit, but to influence the facts,” said Chan-jo Jun at the event on 17 December in the library of the Bavarian Academy of Sciences and Humanities.

Referring to Professor Sarah Rachut and her work “Grundrechtsverwirklichung in digitalen Kontexten” (Realisation of fundamental rights in digital contexts), Chan-jo Jun explained how this is destabilising the existing order: the state is no longer the defining authority and, as a result, companies are no longer the subjects of regulation. Instead, the relationship is being reversed: “Basically, commercial enterprises now have a power that was previously only held by the state.” The consequence: if companies advance to become the state, state organs would consequently become nothing more than users whose accounts could be blocked if they do not behave “properly”.

Video recording of the event

Warning against the algorithm justification trap

The Würzburg-based lawyer also addressed the role of algorithms. A study conducted in early 2025 showed that a newly created account entering the political arena for the first time would see 64 per cent of the content displayed in its timeline on platform X come from or be for the AfD, compared to seven per cent from the CSU. On the TikTok platform, the AfD share was as high as 78 per cent. This did not correspond to either voting behaviour or the proportion of content on the site itself, nor could it be explained by interaction behaviour. The algorithm behind it remained largely secret and opaque. Chan-jo Jun appealed not to fall into the trap of justification. When tech cases were heard in court, companies repeatedly said: “We can’t do that,” “The algorithm can’t do that, the AI can’t do that,” “We don’t know why that happens either.” Chan-jo Jun asked, “Why do we keep letting them tell us this nonsense, and why do judges keep falling for it – that the limit of what is factual is what the algorithm can or cannot do?” Before algorithms existed, companies were simply liable for their products. Even in the event of an accident, the question was not only about how it happened, but also about establishing that an accident had occurred. “But with algorithms, we don’t do that.”

Discrepancy between laws and lived reality

When we ask ourselves today what is considered factual and what is considered normative, a disconnect becomes apparent: the laws created by parliaments in democratic states are no longer automatically considered normative, arising from the factual, “because people no longer experience our values.” What is perceived as “normal” increasingly arises from platform logic and everyday practices on the internet. According to Jun, this can be observed even in everyday school life. When young people are made aware of legal boundaries in the digital space, they are often surprised. Their points of reference are different: when will a post be downgraded, when will a warning be issued, when will visibility be restricted? Such platform mechanisms become facts that have a normative effect.

Against this backdrop, Chan-jo Jun criticised regulations under the Digital Services Act (DSA) as “window dressing”. What use are laws that no one complies with; what use are fines that no one pays? “We are always lagging behind with regulation,” said the media lawyer, part-time constitutional judge at the Bavarian Constitutional Court and recipient of the Bavarian Constitutional Order. He also criticised the willingness to compromise and make concessions in the General Data Protection Regulation (GDPR). In this way, he said, the state “dwarfs” itself and ensures that the facts no longer have anything to do with the laws.

“It is our duty to defend democracy. Our duty as lawyers and non-lawyers,” appealed Chan-jo Jun. Jellinek had already identified the solution to the problem: the facts only become the norm when they are accepted by consensus. “Our task is to name the factual when it contradicts our values.” Everyone can do this in their own way, whether in science, politics or in court.

Panel discussion: Does digitalisation harm or benefit democracy?

The subsequent panel discussion, moderated by Anne Paschke, Professor of Public Law, Technology Law and Digitalisation Law, revolved around the key question of whether digitalisation is harmful or beneficial to democracy. “It depends on how it is designed,” replied Professor Ursula Münch, Director of the Academy for Political Education in Tutzing and member of the bidt Board of Trustees. Münch recalled that digital communication and participation opportunities were initially greeted with euphoria by political scientists. In the meantime, however, the view has become much more sober. From the perspective of social science research, a central challenge lies in the increased opportunities for manipulation of public opinion. It must be assumed that “distorting effects occur” which, under certain circumstances, may also influence voting behaviour.

Even if it is difficult to predict in individual cases exactly how such effects will manifest themselves, Münch argued in favour of questioning existing mechanisms and realigning platform logic: algorithms must be designed in such a way that they “promote moderation rather than extremism” and do not constantly exacerbate negativity. The moderate “both-and” approach must also resonate with people.

Digital tools for citizen participation

Professor Wilfried Bernhardt, former State Secretary and university lecturer at the University of Leipzig, drew attention to the digital transformation of state institutions. Digitalisation, he argued, would have come anyway. “And if state institutions or, for that matter, the courts and parliaments had not attempted to channel the use of digital tools – and in my opinion, they have been partially successful in doing so – we would be in a very bad position today.” Digital tools have at least contributed to democracy continuing to have a great opportunity today.

Bernhardt highlighted the opportunities offered by participation platforms and information options for citizens. He mentioned open data, open government and open justice as keywords. The reason why these opportunities are not always exploited lies more in the lack of speed of implementation. State institutions, including the judiciary, have “failed to understand” how important it is to keep pace with the dynamics of digitalisation. It is also important to use digital tools in view of criminal actors and the threat of hybrid warfare.

Promoting trust in institutions

Bernhardt cited “proactive information” as an approach to strengthening trust: citizens should be informed early on and in a comprehensible manner before any pressure to justify actions arises. The open data principle, according to which citizens are allowed to inspect files, also contributes to this. He named “education, education, education” as the second key lever – from primary school through to training and career. Münch had previously stated that the democratic constitutional state depends on trust, but that this trust is currently eroding.

Laudatory speech for Dirk Heckmann

Throughout the event, it became clear how closely digital law is linked to Dirk Heckmann, member of bidt’s board of directors and professor of law and security of digitalisation at the Technical University of Munich. Several speakers referred to his work and their collaboration with him. Doctoral students presented their projects, which are being developed under his supervision.

The occasion for the event was an anthology that Heckmann had compiled from 25 years of his work to mark his 65th birthday. Professor Anne Paschke presented the book in the library of the Bavarian Academy of Sciences: “Recht und Sicherheit der Digitalisierung – Ausgewählte Schriften 2000 bis 2025” (Law and Security of Digitalisation – Selected Writings 2000 to 2025), published by Duncker & Humblot.

In a video laudatory speech, Federal Minister of Research Dorothee Bär (CSU), who has known Heckmann for a long time from various working groups and committees, praised the work. “You have literally written a piece of digital history” – not in retrospect, “but like a lavish live ticker to read.” Heckmann is a “highly esteemed advisor” in Bavaria, nationwide and in international forums; he makes the law clearer, digitisation more human and every debate more nuanced.

Not only were you the first constitutional law expert in Germany to deal so intensively with law and digitalisation, a visionary at your desk, you also created entirely new areas of teaching and inspired lawyers and computer scientists to follow you on your interdisciplinary paths.

Dorothee Bär, MdB

“Minutes of a radical change”

In November, Heckmann received the Federal Cross of Merit for his services to “digitalisation law” and his commitment to a responsible digital society. In his closing remarks at the event on 17 December, Heckmann highlighted the topic in relation to both his anthology and the award: “And so I see the Federal Cross of Merit not only as an honour for me personally, but also as an appreciation of an important and long-unaccepted topic.” The past quarter of a century has been marked by a technological and legal revolution. The texts in the anthology are “protocols of a radical change”.