The Promise and Perils of Human Rights for Governing Digital Platforms: Symposium Introduction

This essay is part of a symposium on the promise and perils of human rights for governing digital platforms. Read more from the series here; new posts will appear between June 18 - June 30, 2024.

Digital platforms, understood as internet-based infrastructures that enable communication and economic transactions, are rapidly reorganizing social, political, and economic life. These algorithmically intermediated spaces are largely driven by business models based on the collection, aggregation, processing and exchange of data, leading scholars to designate platforms as the “core organizational form” of informational capitalism. However, platformization is also a broader organizational process, in which datasets and databanks are cross-linked to create information retrieval and production networks. These digital infrastructures, which rely on the technologies developed by a few dominant corporations that have the capacity to invest in highly resource- and capital-intensive technological development, are transforming the operation and administration of the state, as well as the private sector. Processes such as immigration control, law enforcement operations, welfare state governance, and smart city management are increasingly managed through digital platforms. Digital platforms are thus entwining public and private spheres in new ways, and transforming the nature, operation and exercise of power.

While the platformization of social and economic life is facilitating new forms of connections between different types of actors, it is also perceived by many as threatening and disruptive to core social and democratic values. Increasing concentrations of economic and political power, intensified surveillance of large populations, the reproduction of structural oppression and discrimination, and interference with individual and collective decision-making are just a few of the most prominent concerns.

In response to these developments, policymakers, civil society groups, UN agencies and experts, as well as academics around the world, are increasingly framing what had until recently been seen as a domain of private platform governance through the framework of human rights, and are seeking to extend the principles and standards of human rights law to govern digital platforms. In mainstream policy discussions on platform governance, human rights are commonly proffered as the solution to all kinds of social problems and deep-seated conflicts, often on the grounds that they are morally objective or universally-shared values.

Yet while human rights offer a salient language of social justice, it is unclear whether they are legally and conceptually adequate to address the most important political, social and economic questions and conflicts raised by the platformization of social life. Critical literature suggests that the individualized, state-oriented legal protections and non-confrontational language of human rights have historically been as likely to stabilize state and corporate power as to challenge it. Moreover, technology regulation scholars argue that greater attention should be directed towards how digital platforms are transforming the material and socio-technical environments that constitute the conditions of possibility for realizing human rights in practice. Indeed, some scholars have suggested that digital platforms are fundamentally transforming the very subjects and objects of governance.

The posts in this collection offer critical and interdisciplinary reflections on the evolving relationship between human rights and digital platforms. The symposium emerged from a two-day hybrid workshop held at Leiden University in January 2024, supported by the Global Transformations and Governance Challenges initiative. Amidst an emerging critical human rights scholarship in the field of platform governance, this symposium seeks to problematize assumptions that human rights are the natural or obvious legal and normative framework for this field, and to nurture more sustained self-reflexivity over their potential, limits and ideological implications. The contributions to this symposium are organized into five parts.

The symposium begins with a series of three posts that critically reflect on some of the general challenges of relying on human rights law and discourse to improve digital platform governance, and the political or ideological assumptions that often accompany such framings. Petros Terzis and Joris van Hoboken open the symposium with a call for greater reflexivity amongst EU technology lawyers about the type of digital world that their regulatory interventions have helped construct and sustain. The authors challenge the assumption that European digital law and policy have been a positive model for the EU and the rest of the world – often celebrated as the ‘Brussels effect.’ Instead, they argue for novel epistemologies and methodological engagement with more diverse disciplines, histories, and epistemic communities, as a basis to develop regulation better attuned to the affordances and production logics of modern technologies.

Debates surrounding platforms disproportionately focus on their implications for freedom of expression, autonomy, self-determination, and privacy, or even those for business accountability. While these are important questions, we rarely inquire as to what it means when intended and unintended engagements with and via these platforms produce murder, massacres, invisibility, and at times, hyper-visibility. The post by Kebene Wodajo and Catherine McDonald seeks to address these underlying questions by asking, what is producing and sustaining platform-enabled violence? And why is it so difficult to regulate? In particular, the authors direct critical attention towards the state-centrism of human rights law. They suggest this has proven ill-equipped to navigate the networked, multi-actor-supported nature of data-driven technologies or to address scenarios where states lack the resources or political will to uphold their human rights responsibilities. They advocate leveraging principles such as solidarity to bring diverse stakeholders together, as part of an effort to challenge the social and institutional structures enabling such injustices.

In the next post, Ramiro Alvarez Ugarte reflects on human rights impact assessments (HRIAs), which have become an essential tool of corporate self-governance under the voluntary framework of business and human rights built around the United Nations Guiding Principles (UNGPs). The author argues that until now, the UNGPs’ fragile legal basis has been a structural weakness. However, as a risk-management tool, HRIAs now play a role in new regulations such as the EU Digital Services Act and the UN Global Digital Compact zero draft. Ugarte suggests that these new regulations may lead to a closer alignment between HRIAs and legal processes, potentially strengthening their impact.

The second part of the symposium focuses on the promise and perils of human rights law for improving platforms’ content moderation practices and processes. This part begins with a post by Stefania Di Stefano, who reflects on recent critiques of human rights law in this area. Di Stefano contends that such critiques are based on a traditional - and arguably outdated - understanding of international law, which draws strict boundaries between state and non-state actors and between binding and non-binding law. In line with contemporary international law scholarship which questions these boundaries, some of the limitations identified by recent critiques of human rights law in content moderation could instead be understood as constituting the seeds of legal change, whereby the vocabulary of human rights law could be used to challenge rather than protect private power.

Continuing our discussion of content moderation, Yohannes Ayalew calls for an African approach that emphasizes the application of collective rights and duties and a communal ethos within moderation processes. Drawing on critical scholarship from Third World Approaches to International Law (TWAIL), Ayalew critiques prevailing human rights-based approaches to content moderation for privileging individualism, overlooking subaltern epistemic locations, and neglecting most African languages. In response, Ayalew advocates a human rights-based approach to content moderation, which includes peoples’ rights such as linguistic rights, communal duties, and social norms such as Ubuntu.

Dominique Carlon then explores how digital platforms have relied on human rights to craft a narrative which suggests that platforms only intervene to a limited extent to remove egregious and harmful content in ways that are proportionate and balanced. The author rejects the pretense that commercial incentives and business values are somehow secondary to human rights standards in content moderation practices. She suggests that more attention should be directed towards spam policies, which afford platforms extensive power to actively curate and remove content based on their commercial priorities.

Part three of the symposium explores the relationship between human rights law and data governance. In his post on the EU’s Data Governance Act (DGA), Leander Stähler critically examines the EU’s efforts to regulate data based on the idea of ‘trust’ by shaping data intermediation separately from data provision and data use. Focusing on the regulation of data intermediation service providers (DISPs) under the DGA, Stähler raises concerns that conditions for DISPs which aim to prevent (perceived) unlawful transfers and access to non-personal data could cement forms of propertarian interest in data that cannot be fully reconciled with other fundamental rights. He also identifies rights such as the freedom of arts and sciences that have been overlooked by the DGA.

Also focusing on challenges concerning human rights law and non-personal data, Matthew Canfield examines this relationship in the context of agricultural data. Agrarian movements in the Global South are mobilizing to challenge the extraction of data from farmers, which will not only empower the corporate sector, but can also dispossess smallholder farmers and indigenous peoples of their knowledge. As movements articulate new justice claims to challenge the datafication of agriculture, Canfield argues that they are challenging the emerging forms of data governance on the grounds that they create new subjects and objects of governance.

The fourth part of the symposium examines digital platforms as sites for protest, activism, and political participation. Joris Fomba begins this segment by examining the applicability of the African Charter of Human and Peoples’ Rights to virtual protest. Africa is one of the regions with the highest number of Internet shutdowns in the world. Between 2016 and 2022, Internet shutdowns steadily increased. During 2022, the African continent recorded at least 187 Internet shutdowns in 35 countries. Fomba argues that the legal instruments and case law of the African Court of Human Rights and the African Commission on Human Rights indicate that the issue of protecting virtual protests is evolving rapidly on the continent. However, online protests are still not sufficiently protected.

In her post, Suruchi Mazumdar explores the issue of ‘digital humanitarianism’ in the context of Rohingya refugees in Bangladesh. Digital humanitarianism has embraced digital platforms and technologies in order to optimize humanitarian efforts. However, such a techno-optimist perspective can also reinforce vulnerability by making populations visible to governments and the private sector. The author calls for examination of the digital labor of subjects of humanitarianism as a way to understand their relationship with international humanitarian agencies and counteract top-down approaches to digitalization.

The symposium concludes by exploring the relationship between human rights law and socio-economic practices. Alexandre Petitclerc and David Eliot describe how the housing market in the US and Canada is becoming increasingly ‘noxious’ since housing data has been leveraged not to build stronger communities, but to produce economic profit. The financialization of housing, driven by its datafication, has led to the platformization of both housing itself and the housing market. Although governments have begun to recognize the detrimental effects of platforms such as Airbnb, the authors suggest that they are not adequately addressing either the underlying cause – the datafication of housing – or the harms resulting from the housing market. Since existing regulations which focus on algorithms and privacy have failed to adequately shield citizens from these harms, the authors call for the development of bespoke solutions that take a more targeted approach.

In the final post of the symposium, Serena Natile examines the relationship between human rights law and the increasing digitization of social security programs. Situating social security and its digitalization in the historic and contemporary power relations that reproduce and exacerbate global inequality, Natile argues that digitalization cannot contribute to a social welfare revolution unless it becomes part of a broader revolutionary agenda to change the current unequal economic order. In this vein, Natile suggests turning to grassroots movements to learn how to harness human rights to obtain recognition of specific violations in the present, as part of bringing about a broader revolutionary change in the future.

Through this collection of posts, we hope to nurture conversation and reflection on the potential and limits of human rights as a tool for social justice struggles in the context of platformization, and to inspire further thinking on the potential need for complementary and alternative norms and frameworks.