The Predilection for Contract in Governing Digital Networks: Micro-Management’s Face Off with Accountability

Abstract

The point of departure for this chapter is the popularity of contractually based transnational private regulation in governing digital networks. The main matters discussed are the causes and consequences of this popularity, particularly in light of the various functions that contract plays. The chapter also explores the persisting tension between contractually facilitated private autonomy in the running of digital networks and efforts to enhance the accountability of the governance mechanisms in play, using Meta’s Oversight Board as a case study. The overarching argument advanced in the chapter is threefold. First, the popularity of contractually based transnational private regulation of digital networks is primarily rooted in its ability to manage the complexity of these networks in a relatively efficient, agile, and flexible manner. Second, there is a tendency to exploit this capacity in aggressive pursuit of micro-management. Third, the attendant accountability mechanisms are often weak, thus deepening legitimacy deficits that are challenging for self-regulation or the court system to correct.

Keywords: Contract; digital networks; transnational private regulation; accountability; Meta’s Oversight Board