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Social Justice, Social Norms and the Governance of Social Media

35 Pages Posted: 13 Mar 2015  

Tal Zarsky

University of Haifa - Faculty of Law

Date Written: March 11, 2015

Abstract

Digital media generate a technological environment which allows for, and at times even creates, a thriving social discourse. Yet the rich information flows enabled by these applications also generate abuses and social wrongs. In response to the challenges posed by these realms, various forms of governance have arisen: rules that detail conduct which is permitted and forbidden throughout these digital settings, as well as an apparatus to enforce them. The online environment introduces governance measures applied through the internal actions of the private and commercial platforms which operate the relevant digital platforms.

The digital media platforms’ ability to engage in governance is manifested on several levels. Most prominently, the platforms control the technological architecture. In other words, the platforms can engage in governance by code. These governance steps are further enabled by the Terms of Use. When platforms act on the basis of these legal documents they are thereby governing by contract. At first glance these two methods of governance (through code and through contract) dominate the social media realm. Seemingly, decisions regarding governance are exclusively vested in a single, private and powerful intermediary. This dynamic, one might argue, is in sharp contrast to governance by law. The foundations of such governance are quite different and are set out by governments and legislators. That said, governance by contract or code might not be as bad as it sounds. One can convincingly argue that these forms of governance are in fact a reflection of the platform users’ normative preferences. These are signaled to the platform operators by means of the various feedback mechanisms that the technological environment provides. If such signaling is indeed unfolding, social media are largely, and at least by proxy, still governed by the users’ social norms.

The question whether forms of governance by “code” and “contract” are aligned with the users’ social norms is therefore crucial and was discussed by legal scholars for decades (most famously, perhaps, by Larry Lessig). This Article reports an initial discussion of findings produced by a team of legal scholars and sociologists from Germany and Israel which approached this challenge from an empirical perspective. This study, among others, applied tailored online surveys to establish the nature of social norms in the social and technological setting and context discussed here.

After setting the stage, this Article proceeds as follows: Part II briefly addresses the theoretical arguments regarding the pros and cons of various governance strategies. In Part III the Article describes, in general terms, the above-mentioned empirical study, presenting its methodology, the specific challenges to its design and implementation, and how these were met. Part IV notes a specific test case: whether pseudonymity should be permitted in social media or should “real names” be mandatory. Part V briefly discusses insights that the “real names” test case might provide for the broader questions regarding justice and fairness in social media governance. The Article concludes with yet another context, the “right to be forgotten,” which might provide additional insights into the important research questions this project and others begin to address.

Keywords: Online Governance, Social Media, Online Privacy, Company Towns, Regulation by Code, Online Social Norms, Real Names, Online Identity, The Right to Be Forgotten

Suggested Citation

Zarsky, Tal, Social Justice, Social Norms and the Governance of Social Media (March 11, 2015). Pace Law Review, Vol. 35, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2576774

Tal Zarsky (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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