107 Iowa L. Rev. 987 (2022)
Is there any limit to social media platforms' ostensibly un-fettered discretion to indefinitely suspend users' accounts or re-move content?
The fierce debate over the exercise of discretionary power by platforms to terminate users' accounts and remove content has primarily focused on free speech ramifications and the constitutional restraints on top down legal interventions. While suspension and removal decisions by platforms often trigger questions situated in public law, they also raise important challenges to private law. Cutting the livelihood of small businesses, independent creators and political activists, termination and removal decisions may carry irreparable financial and reputational harms.
When moderating content, digital platforms exercise discretionary powers conferred under boilerplate contracts defining their Terms of Service ("ToS"). So far, platforms have successfully invoked contractual provisions as a shield against lawsuits of users claiming that unjustified suspension was a breach of contract. This Article argues that courts have often erroneously dismissed users’ claims because they have misinterpreted the agreement be-tween platforms and users as dyadic, namely involving two contracting parties. The interpretation of such contracts as establishing bilateral/vertical obligations only, undermines the true intention of the contracting parties and overlooks the plethora of rights and obligations created by such contracts to multiple stakeholders.
The purpose of this Article is to highlight this blind spot in current contractual analysis and offer courts an interpretive framework for addressing contractual claims involving digital platforms. We argue that platforms' contracts should be interpreted as contractual networks. This analytical framework is based on a growing body of literature which focuses on interrelated contractual obligations among independent agents who share a com-mon goal. Users in social media platforms, we argue, collaborate in creating the shared economic and social value generated by social media. By framing the contractual relationship between platforms and users as a contractual network, courts are called to consider this complexity and the extent to which removals or terminations meet the contractual expectations of the networks' members and advance their common goal.
This approach to contract interpretation may facilitate a bottom-up check on content moderation via private ordering, thus increasing platforms’ accountability. Specifically, if users could effectively raise contractual claims against platforms and hold them accountable for capricious, biased, or unfair removal decisions, they could pressure platforms to align content moderation policies with the shared interests of the community of users. To that end, contract law could empower users by offering a decentralized and diversified check over the platforms’ content moderation practices. Holding platforms accountable for content moderation practices via private ordering could also facilitate more diversity and exploration, enabling the emergence of different models for moderating digital content and promoting a more pluralist public discourse.