Analysis and Theory

Building the Field

Engineering and Policy Development

A Contractual Approach to Social Media Governance (RSM Speaker Series)

March 27, 2024

Berkman Klein Center
1557 Massachusetts Avenue
Cambridge, MA

March 27, 12:30 PM–March 27, 1:30 PM

The Institute for Rebooting Social Media welcomes Gilad Mills for a discussion with Martha Minow regarding his work on contractual approaches to social media governance.

RSM welcomes Gilad Mills for a discussion with Martha Minow regarding his work on contractual approaches to social media governance.

This event will be held at the Berkman Klein Center (room 515) from 12:30pm-1:30pm ET. Lunch will be served! In-person attendance is limited to Harvard ID holders, but the general public is invited to attend virtually via Zoom.

“The heated scholarly debate in recent years around social media governance has been dominated by a clear public law bias and has yielded a substantively incomplete analysis of the issues at hand. Captured by public law analogies that depict platforms as governors who perform legislative, administrative, and adjudicatory functions, scholars and policymakers have repeatedly turned to public law norms as the hook on which they hang proposed governance solutions. As a practical strategy, they either called to impose public law norms by way of regulatory intervention or, conversely, called on platforms to adopt them voluntarily. This approach to social media governance, however, has met with limited success, stymied by political deadlocks, constitutional constraints, and platforms’ commercial preferences. At the same time, private law has been broadly overlooked as a potentially superior source of governance norms for social media, while the potential role the judiciary could play in generating these norms has been seriously discounted or even ignored altogether.

“This Article tackles this blind spot in the current scholarship and thinking, offering a novel, comprehensive contractual approach to social media governance. Applying relational contract theory to social media contracting, it lays out the normative underpinnings for subjecting platforms to contractual duties of fairness and diligence, from which governance norms can and should be derived, it is argued. A doctrinal analysis is also provided, to equip courts and litigators with the practical tools for holding platforms liable when such contractual duties are breached. Finally, to mitigate concerns about judicial over-encroachment on platforms’ decision-making, the Article offers a pragmatic remedial approach that prefers equitable remedies to damages and adopts a deferential standard of review––a ‘platform judgment rule’––that would insulate platforms from judicial scrutiny so long as they uphold their ‘best-efforts’ commitments to conduct informed, unbiased, content-moderation in good faith, and to refrain from grossly misusing personal data.”

Gilad Mills is a doctoral candidate at Harvard Law School. His research explores the relationship between social media platforms, their users, and the public as a whole, and aims to outline a new “Private Law Fairness Doctrine” that requires social media platforms to duly weigh individual and public interests in the course of their business.

Martha Minow is the 300th Anniversary University Professor and former dean of  Harvard Law School. Professor Minow is an expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities. She also writes and teaches about digital communications, democracy, privatization, military justice, and ethnic and religious conflict.