Rethinking Rights in Social Media Governance: Human Rights, Ideology and Inequality

Rachel Griffin (1)

1 EdD - École de Droit de Sciences Po (Sciences Po)

Social media platforms are powerful intermediaries for online communication, media and cultural production. As such, they are a major concern for policymakers and academics. Much of the legal literature on social media analyses them through the lens of human rights. Fundamental rights also play a major role in EU social media law, serving both as general guiding values and as the key check on state and corporate power. This paper questions the dominance of human rights as the primary normative framework for social media regulation and academic critiques thereof. It draws on literature from critical legal studies, feminist political theory, and law and political economy which critiques the liberal-individualistic orientation of human rights, their inability to address structural conditions and collective interests, and the tendency of individual legal rights to disproportionately benefit the privileged. These arguments are highly relevant to EU social media regulation, which relies heavily on individual rights and remedies, while downplaying structural issues and collective interests. They are further developed in the social media context by examining the mounting evidence that platforms systematically reproduce oppression along axes such as gender, race and sexuality. For example, platforms disproportionately suppress content from marginalised groups, promote content that reinforces regressive stereotypes, and profile users in ways that reinforce structural inequalities. By reviewing empirical evidence illustrating these issues and analysing legal sources including the Copyright Directive, Terrorist Content Regulation, and recent ECJ cases Glawischnig-Piesczek and Poland v Parliament and Council, the paper shows that such issues cannot adequately be addressed within a human rights framework. As a legal framework, human rights fail to address collective and societal issues – for example, platforms’ diffuse influence on culture and social norms – and favour individualistic remedies like content removal appeals, which not only overlook collective interests but cannot even offer effective, equal protection to individuals. In political discourse, the seemingly apolitical language and individualistic orientation of human rights can legitimise corporate activities, while downplaying structural questions about the political economy of this privatised, highly-concentrated, advertiser-funded industry – which is fundamental to understanding how platforms reproduce social inequalities. Finally, the paper discusses alternative views of rights which are arguably better-suited to addressing social media’s unequal impacts. More structural or collective framings of human rights nonetheless have important limitations: they still depoliticise issues of group-based oppression by framing them in universal terms, and overlook social issues that are irreducible to individual rights. However, as critical race theorists have argued, even while agreeing with many of the aforementioned criticisms, rights remain pragmatically necessary for progressive movements. Broad-based support for human rights and their entrenched role in EU law mean that critics of social media cannot avoid relying on them. At the same time, academics concerned with platforms’ unequal impacts should seek to develop more explicitly political critiques of social media law, based on alternative normative visions.

Mots clés: human rights; fundamental rights; EU law; social media; platform regulation; platform governance; content moderation; digital services act

Domaines: Droit

Rachel Griffin. Rethinking Rights in Social Media Governance: Human Rights, Ideology and Inequality. European law open, 2023, 2 (1), pp.30-56. ⟨10.1017/elo.2023.7⟩. ⟨hal-03940721⟩