Terms of service and bills of rights: new mechanisms of constitutionalisation in the social media environment?

Abstract

From a cursory look at the terms of service of the main social networking websites, it is immediately possible to detect that Facebook's show a peculiar configuration. Although they represent a mere contract between private parties, these terms adopt the traditional jargon of constitutional texts, and articulate their contents in terms of rights, principles, and duties. This curious pairing between norms regulating social media and the constitutional sphere is also apparent in a series of non-binding documents that are unequivocally named 'bill of rights', and seek to articulate a set of principles to protect social media users. This paper examines whether the emergence of a constitutional tone in this limited number of texts could be related to the effective, or aspirational, constitutional function that these documents exercise. The identification of a series of significant shortcomings will lead to exclude that social media's terms of service and bills of rights of social media users currently play a constitutionalising role. Nevertheless, the possibility to theoretically justify the use of these documents as mechanisms of constitutionalisation in the social media environment will be adduced as an evidence of the potential constitutional aspirations of these texts.

Reading between the lines and the numbers: an analysis of the first NetzDG reports

“…Furthermore, social media platforms tend to use terms and tonalities in their community guidelines that are very similar to the vocabulary used in the NetzDG, making it rather unclear to the user where the differences lie (cf. Celeste, 2018). This similarity between reports being stated, the divergence between the complaint figures is quite significant.…”

Digital punishment: social media exclusion and the constitutionalising role of national courts

“…Constitutional rights rotating around the freedom of information and expression as well as principles, such as proportionality, the rule of law, and procedural guarantees are reinterpreted and articulated so as to fit the social media environment. In this sense, one can talk of a process of constitutionalisation of the social media environment (Celeste 2019b(Celeste , 2019a. The next two sections will clarify to what extent national courts play a role in this context and will investigate the tools which so far have been utilised by judges in their decisions.…”

“…In this context, national constitutional law is no longer articulated to assess the validity of a statute. National constitutional law collides and is balanced against the internal constitutions of social media, as established in their terms of use (see Teubner 2012;Celeste 2019a). Courts recognise the validity of these private constitutions in so far as they do not affect basic fundamental rights (Teubner 2018).…”

Who is a PRC user? Comparing Chinese social media user agreements

“…While a large literature exists on terms of use, community standards, privacy policies, and information regarding data processing of US-based companies (Celeste, 2019;Hintz and Milan, 2011;Leistert, 2015;Lovink, 2013;Silverman, 2015;Youmans and York, 2012), little is known about Chinese user agreements aimed at regulating and managing content. This is surprising given China's 772 million Internet users, making up the largest group of Internet users in the world (China Internet Network Information Center, 2018).…”