A Contractual Approach to Social Media Governance (RSM Speaker Series)

The Institute for Rebooting Social Media welcomes Gilad Mills for a discussion with Martha Minow regarding his work on contractual approaches to social media governance.
“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.”
MODERATOR
Martha Minow is the 300th Anniversary University Professor and former dean of Harvard Law School. Professor Minow is an expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities. She also writes and teaches about digital communications, democracy, privatization, military justice, and ethnic and religious conflict.
SPEAKER
Gilad Mills is a doctoral candidate at Harvard Law School. His research explores the relationship between social media platforms, their users, and the public as a whole, and aims to outline a new “Private Law Fairness Doctrine” that requires social media platforms to duly weigh individual and public interests in the course of their business.
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The Institute for Rebooting Social Media (RSM) is a three-year, “pop-up” research initiative at Harvard University's Berkman Klein Center to accelerate progress towards addressing social media’s most urgent problems, including misinformation, privacy breaches, harassment, and content governance. By convening participants across industry, government, civil society, and academia in focused, time-bound collaboration, the Institute has a portfolio of research, projects, programming, and educational opportunities aimed at improving the state of digital social spaces. Learn more about RSM here: rebootingsocialmedia.org/
Be sure to also check out the brand new Applied Social Media Lab (ASML),
which gives industry-trained technologists the freedom to build social media solutions that center the public interest. Learn more about ASML and our open jobs here: asml.cyber.harvard.edu/
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