Systemic Social Media Regulation

47 Pages Posted: 30 Apr 2018 Last revised: 17 Jun 2018

Frank Fagan

EDHEC Business School

Date Written: April 11, 2018

Abstract

Social media platforms are motivated by profit, corporate image, long-term viability, good citizenship, and a desire for friendly legal environments. These managerial interests stand in contrast to the gubernatorial interests of the state, which include the promotion of free speech, the development of e-commerce, various counter terrorism initiatives, and the discouragement of hate speech. Inasmuch as managerial and gubernatorial interests overlap, a self-regulation model of platform governance should prevail. Inasmuch as they diverge, regulation is desirable when its benefits exceed its costs. An assessment of the benefits and costs of social media regulation should account for how social facts, norms, and falsehoods proliferate. This Article sketches a basic economic model. What emerges from the analysis is that the quality of discourse cannot be controlled through suppression of content, or even disclosure of source. A better approach is to modify, in a manner conducive to discursive excellence, the structure of the forum. Optimal platform architecture should aim to reduce the systemic externalities generated by the social interactions that they enable, including the social costs of unlawful interference in elections and the proliferation of hate speech. Simultaneously, a systemic approach to social media regulation implies fewer controls on user behavior and content creation, and attendant First Amendment complications. Several examples are explored, including algorithmic newsfeeds, online advertising, and invited campus speakers.

Keywords: social media regulation, §230, Communications Decency Act, Honest Ads Act

JEL Classification: K24, K42

Suggested Citation

Fagan, Frank, Systemic Social Media Regulation (April 11, 2018). Duke Law & Technology Review, Vol. 16, No. 1, p. 393, 2018. Available at SSRN: https://ssrn.com/abstract=3160781

Frank Fagan (Contact Author)

EDHEC Business School ( email )

58 rue du Port
Lille, 59046
France

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