Public and Private Power in Social Media Governance: Multistakeholderism, the Rule of Law and Democratic Accountability
Transnational Legal Theory, 14(1) https://doi.org/10.1080/20414005.2023.2203538
42 Pages Posted: 20 Aug 2022 Last revised: 16 May 2023
Date Written: August 15, 2022
*draft paper - final version available at https://doi.org/10.1080/20414005.2023.2203538*
Social media platforms trouble established ideas about the public/private divide. Due to their size, political influence, and abilities to regulate speech at scale, the largest platforms are often compared to governments. Consequently, their unaccountability to the public has prompted widespread concern. This article examines and critiques two related though distinct responses to this tension in academic and policy debates, here characterised as the multistakeholderist and rule of law responses. The multistakeholderist response aims to increase civil society’s influence in platform governance through transparency, consultation and participation. The rule of law response – which is increasingly influential in Europe – extends the platform/state analogy to argue that platform governance should follow the same rule of law principles as public institutions.
This article evaluates both responses’ abilities to make social media platforms more democratically accountable, concluding that both are limited. Both reflect a ‘tech exceptionalism’ which understands social media companies as different from other companies, and therefore requiring special accountability mechanisms. The proposed solutions – subjecting platforms only to accountability from other private actors, or subjecting them to the same principles as states – overlook the insights of legal realism and law and political economy: that corporate power is constituted by state regulation. Both responses aspire to strengthen democratic accountability without substantially changing the legal foundations for digital markets or the market structures they have produced, which is unlikely to succeed. Multistakeholderist initiatives will likely exacerbate unequal participation, since abilities to influence platforms through market pressure, public criticism and consultation are highly unequally distributed. Rule of law approaches implicitly approve vast concentrations of corporate power, provided they follow rule of law principles – which are designed to constrain presumptively democratic states, not to ensure corporations act in the public interest.
Instead, the article advocates reforms guided by an ideal of economic democracy, which emphasises democratic control over markets and aims to redistribute ownership and control of media and communications infrastructure. This suggests two areas for intervention: substantive legal constraints on corporate activities such as surveillance advertising, and reforms aiming to promote pluralism in online media by reducing market concentration and providing non-commercial or public-service digital infrastructure.
Keywords: platform governance, social media regulation, multistakeholderism, rule of law, economic democracy
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