Democratic Disruption in the Age of Social Media: Between Marketized and Structural Conceptions of Human Rights Law

Abstract

Once hailed as beacons of democracy, social media platforms such as Facebook, YouTube and Twitter now find themselves credited with its decay. Amidst a rising global techlash and growing calls for digital constitutionalism, this article develops a typology of the diverse forms of governance enabled by social media platforms and examines the contestability of human rights law in addressing the accountability deficits that characterize the platform economy. The article examines two interrelated forms of social media governance in particular: content moderation, encompassing the practices through which social media companies determine the permissibility and visibility of online content on their platforms; and data surveillance, encompassing the practices through which social media companies process personal data in accordance with their extractivist business models. Recognizing that human rights law is a vocabulary of governance with the potential to both restrain and legitimate particular relations of power within the platform economy, this article critically examines two rival conceptions of human rights law – marketized and structural – that may be relied upon to address the accountability shortfalls that pervade the contemporary social media ecosystem. The article ultimately argues in favour of a more structural conception of human rights law, one characterized by an openness to positive state intervention to safeguard public and collective values such as media pluralism and diversity as well as a systemic lens that strives to take into account imbalances of power in the social media ecosystem and the effects of state and platform practices on the social media environment as a whole.

Attitudes Toward Civil Liberties and Rights Among Politically Charged Online Groups

“…The reported results call social scientists and policymakers for evaluating ways to redesign digital environments in ways that promote a contextualized reading of the available political information, heterogeneous interactions, and open exchanges among social media users. In this regard, Sander (2021) has formulated a typology of forms of social media governance enabled by specific platforms in relation to human rights, with particular focus on their deficits in content moderation (i.e., how social media companies determine the permissibility and visibility of online content) and data surveillance (i.e., how social media companies process personal data in accordance with their extractivist business models). Similar policies have been outlined to counter misinformation and fake news (e.g., Lewandowsky et al, 2017; Marsden et al, 2020), and some of the proposed actions could be adapted to improve the protection of democratic values in online environments – for example, the creation of a nongovernmental organization (NGO) to rate the democratic quality of social media platforms; the creation of a disinformation charter for media and bloggers, to control unacceptable behaviors; and inoculating strategies to make the public aware of how antidemocratic campaigns work, including cyberbullying, trolling, filter bubbles, and nudging (Lewandowsky & van der Linden, 2021).…”

International Law as a Cyborg Science

“…"An important context" for understanding "the accountability deficits associated with the structures of governance of the social media age" is the "encroachment of neoliberal structures of governance around the world, including processes of privatization, financialization and the protection of capital from democratic demands for social redistribution and protection". 24 This encroachment often passes under labels, such as 'informational' or 'surveillance' capitalism, or some blended version of the two. "The vast and growing extent of commercial surveillance facilitates a pervasive entanglement of public and private power, producing a practical reality within which each feeds off the other and neither can be effectively constrained", explains Julie Cohen.25 "The problem is not simply that the biopolitical public domain facilitates commodification (though it does) or that it enables discrimination (though it does that to), but more fundamentally that it subordinates considerations of human well-being and human self-determination to the priorities and values of powerful economic actors.…”

From brand safety to suitability: advertisers in platform governance

“…In 2022, the Commission and leading platform companies, adtech businesses and ad industry associations (including GARM and the WFA) agreed to an expanded version of the 2018 Code of Practice on Disinformation (CoP). The CoP is non-binding, and the previous iteration was not considered particularly effective (Sander, 2021). However, the new CoP is significantly more detailed, and will become an official code of conduct under Article 45 DSA; it will therefore have more teeth, as regulators will use it in assessing compliance with legal obligations, in particular very large platforms' risk mitigation obligations.…”