Свобода договора и ее пределы в цифровой среде

Abstract

Introduction: various actions in online space (for example, pressing a button or continuing to view a website) can have legal consequences predetermined by the rules of information systems with which the subject works. Potentially, his or her rights may be significantly violated by such rules. In cases where it is necessary to protect the rights of citizens and legal entities in digital environment, it seems that many issues can be effectively solved through the application of the doctrine of freedom of contract and its limits to relations arising in online space. We can solve many of the problems that are currently being discussed in relation to digital law using the institution of restriction of contractual freedom in certain cases (where there is a need to protect interests of the weak party to a contract, interests of third parties, public interests, etc.). The purpose of the study is to shape an understanding of the concept of freedom of contract as applied to relations connected with the use of digital technologies; to propose a system of criteria to be used when establishing restrictions on contractual freedom for such situations. Methods: empirical methods of comparison and description; theoretical methods of formal and dialectical logic; specific scientific methods: legal dogmatic method, comparative legal method, and the method of legal norms interpretation. Results: the principle of freedom of contract in general and the universally recognized mechanisms for its limitation remain an effective and necessary tool for regulating relations in digital environment, even if such relations have unique technical features (as is the case with smart contracts or blockchain technology). Conclusions: the transparency criterion is the basis for understanding all aspects of the limitations considered in the article. We should presume unlimited freedom of contract where the procedure for concluding and executing contracts, the content of public offers, the possible mechanisms for cancellation and termination of contractual relations are open, and also where there are no doubts concerning the application of antimonopoly legislation.