18 May 2023
From Contract Law to Online Speech Governance
For years, contract law has been a hidden protagonist in the in the discourse on platform governance. he sound of this silence is especially salient against the backdrop of recent European case law that uses the contractual toolbox to infuse social media terms of service with fundamental rights, in particular the freedom of expression. In this way, contract law has produced – somewhat counterintuitively – one of the most telling responses to the key constitutional issue of social media: how to reconcile freedom of expression as a public value with the private nature of social media platforms. Continue reading >>
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18 May 2023
The Magic Bullet That Isn’t!
Article 17 of the European Union's Copyright Directive fails to effectively safeguard copyright exceptions, which can gravely undermine users’ freedom of expression in the digital public sphere. Against this backdrop, the enactment of Article 14 of the Digital Services Act offered fresh hope. Could it be the eagerly awaited ‘magic bullet’ that ensures effective protection of user rights to rely copyright exceptions to parody and quotation on social media platforms? The possibility of such an outcome is doubtful. Continue reading >>
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17 May 2023
Personalized Law and Social Media
Personalization — a paradigm that has been widely and successfully embraced in other areas of human activity, and primarily on social media — may be ready for the law. Social media as a data source to support personalized law is only suitable for a few areas if life. In those areas, however, personalized standards bear enormous potential. Continue reading >>
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17 May 2023
The Invisible Contract
Many users do not realize that by creating a social media account, they are entering into a legally binding agreement with the platform. It might thus be time to radically rethink the principle of contractual informality online. Social media contracts may regain their importance, and users might become more aware of the contractual implications of clicking on the ‘I Agree’ button. Continue reading >>
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17 May 2023
Social Media Contracts – The Quest for Fairness and the Need for Reform
The social media landscape is changing. The ‚public forum‘ is now filled with citizens selling products, promoting services, charging for subscriptions, and sometimes seeking attention in ways which may not be socially desirable. We ask: How can a space that is becoming increasingly commercialised, monetised, and is a source of income for many nevertheless be fair? Continue reading >>
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23 March 2023
Political Advertising and Disinformation
Over a year ago, the European Commission presented its Proposal for a Regulation on the transparency and targeting of political advertising (COM(2021) 731 final). Recently, the Council presented its General Approach, followed by the position of the European Parliament (EP). While stakeholders are waiting for the trilogue negotiations to shape the final text of the legislation, critical voices are raising concerns. Concerns are that under the future regulation online platforms might have to de-amplify such independent content Continue reading >>04 November 2022
Regulating influence, timidly
The DSA considers advertising and recommender systems as deserving of regulatory attention, and not immutable facets of an online world. But even as the regulation furthers current standards in disclosures around online advertising, it insulates advertising business models and consolidates platform efforts to sidestep the operative question that characterizes online advertising: how and why advertisements reach who they reach, in less abstract terms. Continue reading >>
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03 November 2022
Remedying Overremoval
The DSA provides a whole set of notice and action mechanisms to address online harms. The codified mechanisms, together with detailed procedures, are foreseen for content that is illegal but also for content incompatible with platforms’ terms and conditions. But the DSA has also another goal, to ensure that the new rules respect fundamental human rights. While definitely a good step towards more effective protection of users’ rights, the true effect of the provided remedies will depend on their practical implementation. Some elements of the new regime may be a bold experiment the result of which is not fully predictable. Continue reading >>
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03 November 2022
Contextualisation over Replication
The EU is notorious for using regulatory solutions like the DSA to dominate and pre-empt global digital standards. Often, the major conversations on the international impacts of EU laws have oscillated between capture and actually providing normative leadership on thorny aspects of digital regulation. African countries should develop their own content regulation rules by paying more attention to their contexts and consider aspects of the DSA only where they will improve such local rules. Continue reading >>
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31 October 2022
A Regulator Caught Between Conflicting Policy Objectives
The Digital Services Act has landed on an increased centralization of its enforcement powers in the hands of the European Commission. The rationale behind this centralized enforcement is understandable, particularly in light of the experience with GDPR enforcement. At the same time, it raises crucial questions about the future recurrence of such centralizaion in the Commission's hands, and the separation of powers more broadly. Continue reading >>
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