Social Networking Site Regulation: Facebook, Online Behavioral Advertising and Data Protection Laws

33 Pages Posted: 11 Feb 2016 Last revised: 15 Nov 2016

Asma A.I. Vranaki

University of Oxford

Date Written: February 11, 2016

Abstract

Social networking sites (“SNS”) have transformed modern lives in more ways than one. As SNS have proliferated over the years, they have also raised complex legal, regulatory and policy issues, such as data protection and privacy. For example, the data handling practices and policies of Facebook - one of the most popular global SNS - have attracted several complaints over the years. In recent times, Facebook’s data handling practices and policies have also been scrutinized by various regulators including the Data Protection Commissioner of Ireland. At policy level, governments across the globe are devising strategies and policies to support and promote the growth of the digital economy by, for example, reducing the legal and regulatory obstacles which prevent digital platforms, such as SNS, from prospering.

Debates about regulating online environments are dominated by the Lessigian idea of regulation through law, norms, market and “code”. From this vantage point, questions about cyberspace regulation narrowly focus on which regulatory modality achieves what function. Recently, some scholars have argued against the adoption of a “tools-only” perspective when analyzing cyberspace regulation. Rather, they contend that attention should also be paid to how multiple actors interact with each other and such tools in context. However, these perspectives are still tied to regulatory concepts, such as the pre-determined regulatory modalities and a top-down approach to regulation, which restrict analysis. Wider matters, such as the potentially multi-directional power effects generated in online platforms or resistance to regulation, are not examined in detail.

In this paper, I argue that we need to move away from the dominant cyber-regulatory lens to a conceptual lens of power that combines specific ideas about power from Actor-Network Theory and Michel Foucault (“ANT-Foucauldian Power Lens”) in order to understand more fully (a) the complexity, dynamism and precarity of the regulatory space in online environments when legal rights are at stake and (b) the intricate and multiple power effects (including regulatory effects) generated when a legal right is protected and/ or violated in digital platforms.Power means any enabling, constraining and productive force which is generated when diverse human and non-human actors, such as algorithms, Facebook users’ practices and lawyers with their networks of laws and legal skills, connect with one another when a legal right is at risk (Vranaki, 2013). My innovative ANT-Foucauldian Power Lens enables me to capture and analyse the multiple and intricate connections and dissociations between manifold social, legal, and technological human and non-human actors when a legal right is at stake. This perspective opens up empirical inquiry as the scope of analysis is not limited to pre-determined entities, such as the State or specific directions (e.g. top-down).

This central argument of this article is not only about heterogeneity but also about locality. It should not be assumed that information and communications flows are similar in all online environments without empirical enquiry. Despite the fact that digital environments, such as SNS and other Web 2.0 sites, share commonalities including user-centric platforms, increased mass user-generated content, and user-friendly interfaces, they also have their own local specificities which need to be accounted for when tackling the question of regulation. Consequently, when regulators, law-makers, law enforcers and policy-makers attempt to regulate online platforms, they need to pay attention to the parochial and heterogeneous specificities of such platform in order to regulate them effectively.

In order to support the overall argument of this article, I use selected empirical findings on Facebook advertisements derived from my recent qualitative socio-legal case study of Facebook when data protection and privacy laws are at stake. This analysis generates the following three additional arguments. Firstly, I contend that multiple and diverse social, technological and legal humans and non-humans are brought together when personal data rights are at stake in the context of Facebook advertisements. Such connections can often be rendered more obdurate through their links with “materialities” (for example, hyperlinks) or can fall apart (for example, resistance by Facebook users). This context-specific assemblage is complex as it is formed of social, technological and legal humans and non-humans. It is also dynamic as new and old humans and non-humans can join and leave the connective chain. Consequently, the regulatory space is far more complex and dynamic than previously thought.

Secondly, I argue that the following five power effects, namely, (1) legalizing the processing of Facebook users’ personal data (or information relating to an “identified” or “identifiable natural person”) for targeted advertising, (2) constituting Facebook users as autonomous individuals, (3) mass “dataveillance”, (4) commodifying Facebook users, and (5) enacting particular versions of the marketplace, are generated from the local and varied associations which are involved when personal data rights are at stake in the context of advertisements. Here, I also underline how certain power effects, such as mass “dataveillance”, can occasionally be ruptured as Facebook users resist by installing technologies which block Facebook advertisements.

Thirdly, I contend that the elicitation of valid consent in Facebook can often be a “perfunctory” and banal process which is reduced to mundane actions, such as button clicks. Here, I question to what extent Facebook users can be said to have provided valid consent in accordance with the applicable laws.

Keywords: Facebook, cyberspace regulation, cyberspace, social media, data protection, privacy, power, regulation, socio-legal studies, Foucault, Actor-Network Theory

Suggested Citation

Vranaki, Asma A.I., Social Networking Site Regulation: Facebook, Online Behavioral Advertising and Data Protection Laws (February 11, 2016). Queen Mary School of Law Legal Studies Research Paper No. 221/2016. . Available at SSRN: https://ssrn.com/abstract=2731159

Asma A.I. Vranaki (Contact Author)

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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