How commons approaches can strengthen democratic public life

Democratic public life is under pressure – from several sides at once. While strategic lawsuits against public participation, known as SLAPPs, seek to silence critical voices through legal intimidation, digital vulnerabilities and algorithmic control are creating new power asymmetries. What at first glance appear to be three separate problem areas, on closer inspection prove to be a coherent phenomenon: the authoritarian deformation of digital and public spaces. However, a look at international approaches shows that there are ways to tackle these challenges together.

The triple challenge to democratic public life

Anyone who critically reports on abuses, protests against environmental destruction or exposes corruption today is increasingly confronted with legal threats. The figures speak for themselves: a study by the Coalition Against SLAPPs in Europe (CASE) documents a sixfold increase in SLAPP cases since 2016. The No SLAPP contact point in Germany alone has handled over 50 cases since May 2024. These strategic lawsuits are not aimed at obtaining justice – they are intended to intimidate. The high amounts in dispute, often 60,000 euros and more, can threaten the livelihoods of journalists, activists or small NGOs.

At the same time, digital transformation is making critical public relations work more vulnerable. Anyone who conducts investigative research or protects whistleblowers today needs not only journalistic tools, but also knowledge of data security. The asymmetry is obvious: while resource-rich actors can afford professional IT security and legal advice, many committed citizens face this double challenge alone.

The third dimension concerns the increasing algorithmic control of the public sphere. Artificial intelligence helps determine which issues become visible, which debates are held and who is heard at all. While experts in academic and economic circles discuss AI ethics, local actors are left out of the development and governance of these systems. The production of the public sphere, i.e. the ability to authentically organise and express one's own experiences, is being reweighted in the algorithmic age – mostly to the detriment of civil society.

In view of this triple threat to democratic public life, the question arises as to what concrete counterstrategies can be employed. In her essay "Democratisation of Urban Space: A Right for Urban Commons," legal scholar Katja Schubel points to a promising approach. She defines urban commons as "directly democratically self-governing, inclusive and public welfare-oriented spaces in urban neighbourhoods" that arise through conscious self-organisation by peers. Whether community gardens, self-governing theatres or squatted cultural centres – these spaces are already practising a different form of public sphere based on commoning: the collective design and management of shared resources. 

What is remarkable about Schubel's analysis is that she understands these practices not only as social movements, but as the basis for new legal instruments. Her understanding of commons-public partnerships provides a legal framework for cooperation between civil society commons and the public sector – and thus potentially also an innovative framework for self-managed approaches to counter legal intimidation, digital attacks and algorithmic external control. Various examples show that such approaches are already more than utopian dreams and can serve as a source of inspiration for approaches in the field of digital participation and data security.

From Bologna to Berlin: Commons-public partnerships

A look at Italy reveals interesting developments in how democratic resilience can be built in this sense. In Bologna, a remarkable ordinance was passed in 2014 on collaboration between citizens and the public administration for the maintenance and regeneration of urban commons. This ordinance, largely driven by legal scholars Christian Iaione and Sheila Foster, creates a legal framework for so-called collaboration pacts between the city and active citizens.

What makes this approach so interesting? The ordinance defines urban commons as a legal term, thereby making them justiciable. It specifies what support commons initiatives can expect from the city – from the provision of space to financial support. And it creates clear responsibilities within the administration. The primary focus is not on harmonious partnerships, but on forms of recognition that tend to be conflictual, but all the more productive for that. The crucial point is self-governance rights – not just use, but independent law-making from the bottom up.

In Naples, they went one step further. In 2012, the occupied cultural centre Ex-Asilo Filangieri declared itself a "bene comune" (common good), invoking the centuries-old customary law of "uso civico". This declaration of self-government was ultimately recognised by the city. A working group of artists, users and critical lawyers such as Giuseppe Micarelli developed the legal basis for this. The key point was that a historical legal concept of collective land management was transferred to modern urban commons.

The first signs of this development are now appearing in Germany. The Haus der Statistik in Berlin describes itself as a civic public partnership, even though it does not yet have full self-governance rights. The Neckar Islands have negotiated an agreement with the Federal Shipping Office. In Münster, the Hansa Forum is experimenting with new forms of cooperation. What is missing in all these examples is an overarching legal framework like the one in Bologna.

Integrated protection architectures: the way forward

Against this backdrop, one possible way forward could lie in linking freedom of speech, data sovereignty and participatory AI governance through commons approaches. Municipal resilience hubs that combine legal advice, IT security and AI expertise under one roof could dock onto existing structures such as hackerspaces, adult education centres and legal advice centres, network them with each other and make them accessible through grassroots democratic negotiation.

Commons public partnerships could form the legal framework for this. When groups have formal self-governance rights, legal intimidation becomes more difficult. Recognition as a commons institution creates a different negotiating position vis-à-vis the state and individual private actors. At the same time, such partnerships could encompass digital infrastructures: self-managed server structures, community networks, collective protection architectures.

For AI governance, this means taking seriously the polycentrism that Nobel Prize-winning economist Elinor Ostrom described for commons: multiple decision-making centres instead of centralised control. Those affected by algorithmic systems should have a say in their design. This requires participatory technology assessment at the local level and citizen platforms for algorithmic systems in the public sphere.

A concrete example: the city could enact a regulation based on the Bologna model that defines digital commons as assets worthy of protection. Initiatives that provide secure communication infrastructure for civil society could enter into collaboration agreements with the administration. These would not only secure space and resources, but also offer legal protection. If an initiative is recognised as a commons partner of the city, anti-democratic actors face higher hurdles to overcome.

The German Basic Law as untapped potential

Interestingly, German law does offer some points of reference. Article 15 of the Basic Law, which enables socialisation, has hardly been used to date, but could also be made fruitful for commons-public partnerships. The principle of democracy and the social state in Article 20 of the Basic Law offers further starting points. And German history certainly has forms of common property and commons that could be drawn upon.

The Law Clinic for Transformation Law at the University of Frankfurt, led by Professor Isabel Feichtner, shows how critical lawyers can translate between social movements and legal systems. Students work directly with initiatives to explore legal avenues for commons. This type of collaboration is essential: without legal expertise, commons often remain trapped in legal grey areas.

The future of the democratic public sphere

The authoritarian juridification of the public sphere – whether through SLAPPs, digital surveillance or algorithmic control – cannot be countered by individual measures. What is needed is an emancipatory juridification that enables self-government rather than preventing it, strengthens solidarity rather than promoting isolation, and creates prefigurative spaces for the society we desire.

Commons-public partnerships are not a panacea. They are a tool in the toolbox of democratic transformation. Their strength lies in the fact that they bring together the three dimensions of the challenge: they create legal recognition and thus protection against SLAPPs. They enable collective data sovereignty instead of individual vulnerability. And they provide a framework for participatory technology design instead of technocratic external control.

The path to this goal is fraught with conflict. Commons-public partnerships do not arise from harmonious cooperation, but from productive debate. Various struggles – against SLAPPs, for data sovereignty, for democratic AI design – must be brought together. But this is precisely where the opportunity lies: the combination of these struggles creates the power for fundamental change.

International experience shows that this is possible. From Bologna to Naples, from Berlin to Münster, new forms of democratic self-organisation are emerging that counteract pressure from above. They show that defending democratic public life is not a defensive strategy. It is the construction of a different legal and social order, piece by piece, conflict by conflict, commons by commons.