Social Media Contracts: The Quest for Fairness and the Need for Reform

In a constant search of new ways to generate revenue, social media giants are transitioning from business models that have largely been focusing on (targeted) advertising, to capitalising on the social transformation of influence. In these new ecosystems monetizing attention and parasocial relations, traditional contractual relationships are altered in ways we do not yet fully grasp. Gratuitous contracts with payment as counter-performance coexist with cascading new digital services around subscriptions, tokens, micro-transactions, and other forms of monetization that allow social media platforms to rely less on advertising business models.

The Verfassungsblog Radical Reforms symposium is based on the presupposition that the social media landscape is changing. Coined as ‘the new public forum’ (see for example Packingham v North Carolina 137 S. Ct. 1730, also Pozen’s The Perilous Public Square), we see that that public square is now filled with citizens selling products, promoting services, and charging for subscriptions. Simultaneously, the owner of the square is incentivising attention-seeking behaviours (also known as ‘clout-chasing’). In that changing landscape, a regulatory quest for fairness manifests itself. How can a space that is becoming increasingly commercialised, monetised, and is a source of income for many be fair?

Departing from this foundational question, this symposium pursues many more granular ones, each anchored in whether and how the rights of users in social media spaces can be strengthened vis-à-vis dominant platforms. One point of departure are the standard agreements which users conclude when joining social media; does the extant contract law paradigm sufficiently protect the user online? Centrally, a division emerges between the average user and the so-called ‘influencer’. Some user groups who generate content and, in turn, income, may demand their share in a fair division of value. But in the pursuit of attention, clout, and eyeballs, not every means of surpassing minimum thresholds necessary for generating income may be desirable from a societal point of view. Indeed, as society is gradually enmeshing ‘real’ with ‘virtual’, the dynamics of the privately-owned, increasingly commercialised virtual world can skew how information is shared and spread to the average user. Can social media contracts contribute to making the status quo bearable for society at large, and fair for average users and influencers on the personalised level? In the end, the sum of these questions all boil down to power: who gets to decide on the digital landscape, and with whose interest in mind should that decision be made.

Against an increasingly complex background, even basic questions relating to the expectations of parties (especially consumers) to social media contracts, or the nature and content of their performances, threaten existing legal doctrines and fundamental principles aiming to alleviate the imbalance of power in these transactions, such as fairness, good faith or unconscionability. So what if we rethought social media contracts in a radical way? What values should we prioritise in the relationships between users and social media platforms, and how can they be facilitated? This symposium invites its participants to rethink social media contracts, whether based on insights from technology, behaviour and/or legal doctrine, to map and address the inherent vulnerabilities of this space and the individuals affected the most therein.