Berdien B E van der Donk

Berdien B E van der Donk

PhD fellow

  • PhD programme

    Karen Blixens Plads 16, 2300 København S, 6B Bygning 6B (Afsnit 3), Building: 6B-3-39

    Mobile: +4553882212


Berdien van der Donk is a PhD-fellow at the Centre for Private Governance (CEPRI), University of Copenhagen. She teaches EU Internet Law at Copenhagen Business School and works outside of academia as a legal analyst for trademark and domain name cases at Clarivate’s Darts-IP.  

Berdien spent time as a visiting researcher at the Tilburg Institute for Law, Technology, and Society (TILT) at the University of Tilburg (2021, 2022), and the Centre for Research in History, Philosophy, and Sociology of Law and Computer Science (CIRSFID) at the University of Bologna (2022). She is a member of the Global Digital Human Rights Network (GDHRNET) and she participated in the Research Sprint on "Takedowns and Transparency: Global Norms, Regulation and the Nature of Online Information” hosted by the Berkman Klein Center for Internet & Society at Harvard University (2022).

Her current research focuses on the invalidity of restrictive clauses in user terms on social media platforms. For her PhD project, she developed a European common framework that addresses all types of access restrictions (on social media platforms).

Previous publications cover copyright and trademark law, contract law, trade secrets, dynamic injunctions, and fundamental rights law.



Digital Bouncers. A European roadmap to navigate access rights and moderation issues on social media platforms


This dissertation focuses on the complex issue of questionable content removals and account suspensions on social media platforms in the European Union. The unique nature of the internet's infrastructure and the differing normative views on the role of social media platforms make resolving access restriction and moderation issues a challenging task. The greatly varying outcomes in recent years in case-law in the Member States show that a universal approach to address these issues is currently lacking. With the Digital Services Act taking effect in early 2024, a unified approach is essential to ensure that all European users have equal opportunities for redress. This dissertation provides a European roadmap to navigate online access rights and moderation issues on social media platforms as a solution to the existing legal ambiguity.

The roadmap’s elements are deduced from a technology-neutral comparative case-law study of four Member States (Denmark, Germany, Italy, and the Netherlands), in which access and moderation restrictions to physical property have been compared to restrictions on social media platforms. The six substantive chapters provide four independent layers for a roadmap: the foundational layer, the access layer, the content layer, and the enforcement layer. The design of each of these layers is subsequently amended to reflect the legal landscape applicable to social media platforms’ terms of service.

The first layer – called the foundational layer – outlines the legal basis for social media platforms to impose restrictions. Following the case-law of the Member States, national courts have almost exclusively relied on the right to property to resolve access and moderation decisions, both concerning physical property and virtual spaces. On the basis of this observation in combination with a doctrinal study, the right to property forms the only possible starting point to address access and content restrictions on social media platforms. The second layer – the access layer – covers the three ways a platform operator can exercise the exclusive rights protected by the right to property to shape the access possibilities to its platform. This layer also outlines the limitations to the platform’s right to exclude users. These limitations form the legal basis for users to force the platform to contract them. After accessing the platform through either open, conditional, or forced access, the legal issues shift from accessing the platform to decisions that the platform takes in relation to the users’ content. The third layer – the content layer – covers two paths: the doctrine of the general right of use on open access-platforms and the validity and enforceability of user terms on conditional access-platforms. The fourth and final layer – the enforcement layer – covers users’ and platforms’ remedies for breaches of the terms of service. It covers users’ legal redress against a content moderation decision, the procedural obligations in the Digital Services Act that platform operators have to uphold when enforcing contractual sanctions for a user’s breach of contract, and the consequences for infringements of those procedural obligations.

The dissertation’s biggest contribution to the legal field lies in the unifying power of the roadmap. Streamlining the application of the various fields of law allows decision-makers to reach (more) uniform outcomes, which will ultimately benefit European platform users. ‘Decision-makers’ should be understood broadly. The roadmap guides all parties involved in content moderation-decisions on platforms, including judges in the Member States, social media platforms, and out-of-court dispute resolution bodies. In addition to the development of the roadmap, the dissertation has led to several concrete findings along the way. Firstly, from the comparative study on the national case-law, it follows that courts in the Member States rely on property law to adjudicate issues resulting from access and moderation restrictions on both physical property and social media platforms. Secondly, ex-ante access problems cannot be resolved by applying the same rationale, arguments, and laws as applicable to ex-post content moderation issues. The distinct problems arising from ex-ante restrictions have not previously been highlighted in the literature. Lastly, this dissertation clearly demonstrates that, currently, the primary way to safeguard fundamental rights on social media platforms is through contract law.



  • Developments in internet criminality
  • The applicability of private companies' 'house rules'
  • Digital enforcement 
  • (The effects of) automated content filtering
  • The application of human rights in an online context 

Selected publications

  1. Published

    How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)

    van der Donk, Berdien B E, 27 Aug 2020, In: Journal of Intellectual Property Law & Practice. 15, 8, p. 602-616 14 p.

    Research output: Contribution to journalJournal articleResearchpeer-review

  2. Published

    Cannabis, corona, and the latest morality developments in European trademark law

    van der Donk, Berdien B E, 2022, In: Journal of Intellectual Property Law & Practice. 17, 3, p. 303-307 5 p.

    Research output: Contribution to journalJournal articleResearchpeer-review

ID: 226569473