Tomer Shadmy, ‘The New Social Contract: Facebook’s Community and Our Rights’

Abstract
Digital platforms have an ever growing ability to control and regulate their users. The platforms’ terms of service, content moderation policies and algorithms form new regulatory ecosystems. These new ecosystems, argues this article, do more than simply establish sets of affordances and constraints; rather, they challenge and transform basic legal concepts. To demonstrate this argument, the article analyzes Facebook’s design, technology, and rhetoric. The analysis shows that Facebook’s infrastructure creates and promotes a novel regime of rights. Rights, under this regime, protect the freedom to feel instead of the freedom to choose. They do not generate any duties. The platform itself is not accountable to, or limited by, the users’ rights. This regime of rights, unlike traditional ones, is not functioning through discourse and interpretation, but through code. Thus, as the article reveals, digital platforms go beyond adding a digital layer to our personal, professional, and political relations: they also add a normative and legal layer, and shape new social contracts. Alarmingly, for the most part, users seem unaware of this normative aspect.

Shadmy, Tomer, The New Social Contract: Facebook’s Community and Our Rights (August 25, 2018). Boston University International Law Journal, Volume 37, 2019 (forthcoming).

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