Social Media Platforms: An Approach for the Inter-American System Legislation

Abstract

In recent years, social media platforms have been in the eye of the storm. The Cambridge Analytica case, the disinformation campaigns against Hillary Clinton in 2016, Trump's censorship on Twitter or the allegation made in 2021 by the whistleblower Francis Haugen are examples of this.

Nowadays, there is a global debate about whether social media networks should be regulated or not, how that regulation should look like and what consequences could imply. For instance, the European Union has already established two programs: the Digital Services Act (DSA) and the Digital Market Act (DMA) that create a legal framework for this environment. In the US, there is an open debate on which should be the role of the government.

The main concerns that have been raised in favor of its regulation are about their content and privacy policies, as well as the use of personal data provided by users. According to this research, the lack of regulation of social networking platforms poses a concrete risk to people's basic rights and guarantees. Consequently, this regulation would be urgent in so far as it would allow to determine limits, obligations and the legal liability of the companies that own these social media platforms. At the same time, it would make it possible to regulate and adapt its operation in accordance with the users' guarantees.

When drafting this model legislation, the initial challenge was to be able to create consensus regarding the definitions of the object to be regulated - or the object of study -, and its related concepts. One of the contributions of this manuscript is the clear conceptualization of each term, which allow us to have a common ground to start a debate on how social media platforms can be regulated. This research challenges the conceptualization of social media platforms and approach to determining responsibility in the four questions and rights mentioned above.

As social media is an international resource, it is thus necessary that the legislation is not only framed in one country. Therefore, this study is framed within the Inter-American system, understanding that the common legal ground of the countries involved is the American Convention on Human Rights.

First, this research provides a uniform and comprehensive definition of the key concepts for eventual legislation. Second, it answers three main questions: who will be responsible for enforcing the legislation and surveilling its compliance? How will compliance be assured? And what are the dangers and threats of having stringent legislation? Finally, it proposes a uniform standard legislation that any country within the Inter-American system could consider when legislating social media platforms in their own territory.