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GUNTHER TEUBNER

He teaches private law and sociology at Frankfurt Universi-ty. Otto-Kahn-Freund Profcssor of Comparativc Law and Legał Theory in London School of Economics (1992-1998). Rcccivcd award of Leon Petrażycki from International Socicty of Sociology (1983), and Europcan Academy Award (1998).

He is an author of books: Law as Autopoietic System; State, Law, Economy as Autopoietic Systems; Environmental Law and Ecological Responsibility; Global Law without a State.

I. A RIGHT OF ACCESS TO CYBERSPACE?

A group of globalisation critics are suing a commcrcial host provider of thc Internet. They are appealing to the principlc of frcc speech in order to cnforce their alleged right of access judicially. The host providcr who offers content providers the possibility on its computcrs to set up websites, had long got caught up in the tangles of State attomcys and privatc collcctivc actions because some of the websites contained child pomography and Nazi propaganda. The decisive factor came with the decision of thc Paris Tribunal de Grandę Instance, Order of 20 November 2000, ordering Yahoo Inc to bar access by French users to auctions of Nazi objeets. The finał blow came with the new trends toward public-private co-regulation which excmpts providcrs from liability when they cooperate with State agencies.The providcr thcrcupon electronically barred access to all websites where it regarded the risk of crimi-nal or civil actions as too high. The bar also affected political groups rated by Compuserve as politically radical or too close to violent protest campaigns. In a civil action, thesc groups are now seeking to compel access to the host provider.

The case ties together in a single focal point a rangę of fundamcntal pro-blems that the digitisation of communication is throwing up ancw. It is not just technical legał questions of compulsory contracting for privatc providcrs, a right of access to internet institutions, thc validity and implcmcntation of national norms in the transnational internet, or thc third party cffcct of funda-mental rights in cyberspace that are up for debatę. Rathcr, we are faccd with the morę fundamental qucstion of a univcrsal political right of access to digital communication. Ultimatcly. problcms of cxclusion from global communication processes are raised. In the background lurks the theoretical qucstion whether it follows from the evolutionary dynamics of functional differentiation that thc various binary codes of thc world systems are subordinate to thc one difTcrcn-ce of inclusion/exclusion. Will inclusion/cxclusion become thc meta-codc of the 21“ century, mediating all other codes, but at the same time undermining functional differentiation itsclf and dominating other social-political problcms through the exclusion of entire population groups?

From the many problcms our harmlcss legał case raises, I wish to single out one question: how is constitutional theory to respond to the challenge arising from the three currcnt major trends-digitisation, privatisation and global isation-for the inclusion/cxclusion problem? That is how today’s “constitu-