Much of the internet of today is dominated by the big tech companies such as Google, Facebook, and Amazon that use it to amass profits. The chapter looks at three ways in which their pursuit of profit arbitrarily interferes with people’s access to and use of the internet. (1) Big Tech corporations operate a version of the internet that forces users to yield personal data in exchange for ‘free’ services. The chapter explains why this routine harvesting of personal data is morally problematic as it forces internet users to choose between two elements of minimally decent lives: their privacy and accessing the internet. (2) Social media platforms are among the dominant online services today. They have enhanced opportunities for exercising human rights, but their business practices also limit people in the enjoyment of these rights. The chapter suggests several ways for improving the situation. (3) Some businesses lobby for ending net neutrality. The chapter explains why net neutrality is crucial for keeping internet access free from arbitrary interferences, and argues for a version of net neutrality that allows some unequal treatment of data that does not diminish human rights.

The term “content moderation,” a holdover from the days of small bulletin-board discussion groups, is quite a bland way to describe an immensely powerful and consequential aspect of social governance. Today’s largest platforms make judgments on millions of pieces of content a day, with world-shaping consequences. And in the United States, they do so mostly unconstrained by legal requirements. One senses that “content moderation” – the preferred term in industry and in the policy community – is something of a euphemism for content regulation, a way to cope with the unease that attends the knowledge (1) that so much unchecked power has been vested in so few hands and (2) that the alternatives to this arrangement are so hard to glimpse.

An entity – a landlord, a manufacturer, a phone company, a credit card company, an internet platform, a self-driving-car manufacturer – is making money off its customers’ activities. Some of those customers are using the entity’s services in ways that are criminal, tortious, or otherwise reprehensible. Should the entity be held responsible, legally or morally, for its role (however unintentional) in facilitating its customers’ activities? This question has famously been at the center of the debates about platform content moderation,1 but it can come up in other contexts as well.2

Current approaches to content moderation generally assume the continued dominance of “walled gardens”: social-media platforms that control who can use their services and how. Whether the discussion is about self-regulation, quasi-public regulation (e.g., Facebook’s Oversight Board), government regulation, tort law (including changes to Section 230), or antitrust enforcement, the assumption is that the future of social media will remain a matter of incrementally reforming a small group of giant, closed platforms. But, viewed from the perspective of the broader history of the internet, the dominance of closed platforms is an aberration. The internet initially grew around a set of open, decentralized applications, many of which remain central to its functioning today.

Almost all platforms for user-generated content have written policies around what content they are and are not willing to host, even if these policies are not always public. Even platforms explicitly designed to host adult content, such as OnlyFans,1 have community guidelines. Of course, different platforms’ content policies can differ widely in multiple regards. Platforms differ on everything from what content they do and do not allow, to how vigorously they enforce their rules, to the mechanisms for enforcement itself. Nevertheless, nearly all platforms have two sets of content criteria: one set of rules setting a minimum floor for what content the platform is willing to host at all, and a more rigorous set of rules defining standards for advertising content. Many social-media platforms also have additional criteria for what content they will actively recommend to users that differ from their more general standards of what content they are willing to host at all.

A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas – that the solution to bad speech is more, better, speech.1 This basic idea is well established in both judicial and scholarly writing – but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly “good” speech may be indistinguishable by listeners from bad speech – indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly “good” speech has the effect of “bad” speech. I call this process by which ostensibly good speech turns the effects of other speech bad “a noisy speech externality.”

The internet has remade both the media and the social institutions that surround the media. Speech was not cheap in the twentieth century. News organizations had to buy newsprint, paper, distribution networks, transmitters, spectrum licenses – all kinds of things that cost much more than a Facebook page – if they wished to reach an audience. But the few news organizations that could cover these costs held a safe market position, and from this perch, they wielded a great deal of epistemic and moral authority in their communities. They became “gatekeepers” with the power and the responsibility to decide what information, and what claims, were fit to print. Much of media law, and particularly First Amendment law, seems to have developed around the assumption that news organizations could and would play this gatekeeping role, and that the government should therefore rarely need to.

Media platformization has caused problems that a state cannot easily regulate. The media content regulations considered in Chapter 4 are prime examples demonstrating the need to alter the power distribution in the Internet ecosystem. In terms of speech platforms, the “rules-based” platform governance model led by the EU, such as the DSA, now represents a strong power in balancing the US’ CDA-based social media self-regulation. The years to come will be critical to the global governance of digital platforms. Key indicators include whether more and more countries will adopt DSA-like regulations along the EU regulatory path. In terms of streaming services, the content quotas for video streaming platforms may constitute performance requirements for investment in services. This measure may also violate the obligations that apply to the nondiscriminatory treatment of digital products. Looking ahead, cultural diversity concerns regarding avatars in the VR space will be even more complex and will propel the “trade v. culture” clash to another level. No matter how carefully crafted, media content regulation must face enforceable reality. Trade rules that ban local presence would enable platform companies to supply services without establishing a local presence, which could significantly constrain a state’s ability to enforce platform regulations.

Threats are not protected speech, but defining what constitutes a threat has been problematic, particularly when it comes to online speech. We start with a look at threats against the US president, beginning with a 1798 prosecution for threatening John Adams, and leading up to the passage in 1917 of the first federal legislation against threatening the president. We will look at WW I-era prosecutions for threatening the president, leading up to a 1969 Supreme Court decision, Watts v. US, distinguishing true threats from protected political speech. And we conclude with two cases of online threats: the prosecution of Anthony Elonis for posting threats on Facebook, and a case where two tourists were denied entry to the US because of joking tweets that were treated as threats by US Border Agents. We conclude that threats, like obscenity, remain unprotected speech, but defining what is and what is not a threat in any particular case remains a problematic, subjective decision.

This chapter considers the role of the media in promoting and protecting human rights. With the rise of the Internet and highly offensive material “going viral” have come calls for more regulation. It is challenging to balance human rights to freedom of expression, access to information, freedom of assembly, and privacy against countervailing interests. While media freedom is important for the mobilization of shame, it carries risks explored here. Deciding how to balance competing considerations without adopting overbroad legislation should lead to lively class discussions.

This chapter aims to analyse the evolving technological and legal intersection between content and data in the algorithmic society. The shift from parallel track to overlapping layers of these two fields contributes to examining platform powers and understand the role of European digital constitutionalism. The first part examines the points of convergence and divergence between the legal regimes introduced by the e-Commerce Directive and the Data Protection Directive. In the second part, two examples shows how the relationship between the two systems has evolved, looking in particular at how technological convergence has led to overlapping layers between the the fields of content and data which were conceived on parallel tracks. The third part examines the role of European digital constitutionalism with a specific focus on three paths of legal convergence.

This chapter highlights the reasons for the turning of freedoms to more extensive forms of private power by online platforms. Understanding the characteristics of platform power is critical to understand the remedies mitigating this constitutional challenge. This chapter analyses the two interrelated forms through which platforms exercise powers in the digital environment: delegated and autonomous powers. The first part of the chapter analyses the reasons for a governance shift from public to private actors in the digital environment. The second part examines delegated powers in the field of content and data while the third part focuses on the exercise of autonomous powers competing with public authority.

This chapter underlines how European digital constitutionalism supports the introduction of remedies in the field of content to protect freedom of expression in the algorithmic society. The first part of this chapter analyses the shift from a liberal economic narrative based on the metaphor of the free marketplace of ideas to the rise of online platforms power in moderating online content. Precisely, it focuses on the logic of content moderation, the rise of the algorithmic public sphere and the challenges to the protection of the right to freedom of expression raised by the private enforcement of fundamental rights. The second part focuses on the current status quo, underlining the first step of European digital constitutionalism to limit platform power and focusing on the horizontal effect doctrine as a potential way to fill the regulatory gap in the field of content moderation. The third part provides the approach which European digital constitutionalism would design to address the challenges of content moderation focusing on rethinking online media pluralism through transparency and procedural safeguards.

With their ability of selecting content available, algorithms are used to automatically identify or flag potentially illegal content, and in particular hate speech. After the adoption of the Code of conduct on countering illegal hate speech online by the European Commission on 31 May 2016, the IT companies heavily relied on algorithms that can skim the hosted content. However, such intervention could not be completed without the collaboration of moderators in charge of verifying the doubtful content. The interplay between technological and human control, however, adds several questions. Under the technological dimension, the most important issues concern the discretion of private companies as regards the definition of the illegal content; the level of transparency as regards the translation of the legal concepts into code; the existence of procedural guarantees applicable to the system adopted to challenge automatic decisions. Under the human dimension, the most important issues concern the selection procedure to identify the so-called ‘trusted flaggers’ able to provide the final decision regarding the illegal nature of the online content, the existence of accreditation or verification process that would evaluate the quality of the notices provided by such trusted flaggers, the allocation of liability in case of mistake between the online intermediary and the trusted flagger.