An Emergement Constitution via Private Ordering? The Case of Personalized Online Advertising

This article analyses the role of contract law in structuring and contesting legal innovation in the European digital economy, using personalised online advertising as a case study. It argues that co-regulatory regimes such as the General Data Protection Regulation (GDPR) have effectively delegated the concrete determination of lawful data-processing practices to private contractual arrangements, thereby placing standardform contracts at the centre of contemporary regulatory governance. Dominant digital platforms have exploited this delegation by deploying take-it-or-leave-it contractual architectures and expansive interpretations of lawful bases for processing, transforming contractual consent into a functional substitute for regulatory authorisation. The article challenges the assumption that widespread contractual adherence signals legal validity or social acceptance. Drawing on contract theory and institutional analysis, it identifies a persistent "consensus fallacy" whereby mass adhesion to imposed terms is treated as evidence of genuine consent, notwithstanding structural asymmetries, network effects, and collective action problems that severely constrain individual choice. These dynamics allow firms to externalise legal and constitutional costs through contract, producing systemic harms that remain temporarily invisible within market processes. The article further shows that the same private-law mechanisms that initially facilitated the diffusion of legally fragile contractual practices are now contributing to their undoing. Through teleological judicial interpretation of EU law, combined with private and collective enforcement actions, we can foreshadow a novel and emergent constitution via private ordering. Courts progressively recalibrate the meaning and effects of contractual consent, retroactively invalidating speculative contractual strategies and reshaping the cost structure of surveillance-based business models. Where contractual arrangements rely on interpretations incompatible with the objectives of EU private law and fundamental rights protection, their economic sustainability is increasingly undermined by damages, injunctions, and compliance costs. By conceptualizing this process as “constitutional review by bankruptcy”, the article envisages it as an emergent form of decentralized constitutional enforcement mediated through contract law and litigation. The article contributes to contemporary debates on contractual governance, regulatory private law, and the limits of consent in digital markets. It argues that contract law is not merely a vehicle for regulatory evasion in the digital economy, but also a key site through which legal boundaries are rediscovered and enforced ex post.