Berdien van der Donk (University of Copenhagen Law) has posted “What Exactly Is a Social Media Platform? A Study of the Equivalents of Social Media Platforms in European Law” on SSRN. Here is the abstract:
What exactly is a social media platform? Can it be compared to a public park, a stadium, an electricity company, or perhaps to something non-existing in the physical world around us? The question on who gets to decide what can be posted on social media platforms is closely intertwined with the question what social media platforms are and how these platforms and their content should be regulated. However, a consensus on the answer to these questions does not exist.
This article contributes to the discussion on the qualification and regulation of social media platforms. It starts by clarifying the terminological inconsistencies regarding public utilities, services of general interest, universal services, and essential facilities in European law. The author continues with a literature review to summarise the current debate on the offline equivalent of social media platforms. It will show that, overarchingly, two different debates exist: on the one hand, whether platforms can be regulated as public utilities, and on the other hand, whether platforms can be compared to either a private space, a public space, or a public sphere. Subsequently, an in-depth analysis is carried out.
The author concludes, firstly, that under European law, a social media platform cannot be an essential facility as these platforms simply do not fulfil the requirements. Secondly, social media platforms should not be regulated as a service of general interest, because of their worldwide application. They could, however, be regulated as universal services, but not without extensive justification. Thirdly, since they are privately owned, social media platforms are not public places. The author argues that a social media platform is more suited to be compared to a privately owned, freely accessible place (e.g., a stadium) than a public sphere, as social media platforms do not significantly differ from existing private undertakings open to the general public.
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