A Contractual Approach to Social Media Governance

Abstract

The heated scholarly debate in recent years around social media governance has been dominated by a clear public law bias and has yielded a substantively incomplete analysis of the issues at hand. Captured by public law analogies that depict platforms as governors who perform legislative, administrative, and adjudicatory functions, scholars and policymakers have repeatedly turned to public law norms as the hook on which they hang proposed governance solutions. As a practical strategy, they either called to impose public law norms by way of regulatory intervention or, conversely, called on platforms to adopt them voluntarily. This approach to social media governance, however, has met with limited success, stymied by political deadlocks, constitutional constraints, and platforms’ commercial preferences. At the same time, private law has been broadly overlooked as a potentially superior source of governance norms for social media, while the potential role the judiciary could play in generating these norms has been seriously discounted or even ignored altogether.

This Article tackles this blind spot in the current scholarship and thinking, offering a novel, comprehensive contractual approach to social media governance. Applying relational contract theory to social media contracting, it lays out the normative underpinnings for subjecting platforms to contractual duties of fairness and diligence, from which governance norms can and should be derived, it is argued. A doctrinal analysis is also provided, to equip courts and litigators with the practical tools for holding platforms liable when such contractual duties are breached. Finally, to mitigate concerns about judicial over-encroachment on platforms’ decision-making, the Article offers a pragmatic remedial approach that prefers equitable remedies to damages and adopts a deferential standard of review––a “platform judgment rule”––that would insulate platforms from judicial scrutiny so long as they uphold their “best-efforts” commitments to conduct informed, unbiased, content-moderation in good faith, and to refrain from grossly misusing personal data.

Keywords: Social Media, Private Law, Contract Law, Relational Contract Theory, Equity, Equitable Remedies, Section 230, Content Moderation, Data Governance