Opportunities and limits of European social network regulation

Abstract

This chapter argues that social networks are currently undergoing a turn towards adopting procedural safeguards and duties of care regarding the substantive rights of users. The current EU regulatory framework, centred on the eCommerce Directive, was thought for a different online environment. Therefore, it is strained by social networks in ways legislators and courts are currently trying to address. Some of these strains are produced by the institutional design of the regulatory framework, but these institutional factors only become a problem in light of the harms that social networks introduce or amplify. Despite the fact that harmful user behaviour may sometimes be advantageous to social networks (e.g., by attracting certain groups of users), social networks may be induced to adopt content moderation approaches not only in the interest of the users that could be harmed or repelled by such behaviour, but also to avoid losing the liability exemption they enjoy as intermediary carriers of user-generated content. Content moderation may itself introduce risks to users’ rights, and EU courts and legislators have sought to constrain the range of discretion available to moderators. In this context, we argue the regulation of social networks should be perceived as a socio-technical problem, in which neither technical approaches nor general law alone are conducive to socially desirable outcomes. Instead, regulation needs to be aware of the social impacts of platforms, and the role technology can play in amplifying or mitigating them.