Online Platforms: Private Actors with State-like Power?

→ PDF file ←

1. Uta Kohl, “Platform Rule: Corporate Sovereignty through Immunities”

Abstract: In this presentation I will argue that the power of platforms and their “sovereign" rule of network society have not arisen ’naturally’ in response to economic dynamics of the online market, but have been facilitated and created by law. Through the grant of sweeping immunities to online intermediaries - s.230 of the US Communications Decency Act (1996) and Art 11-15 of the EU Electronic Commerce Directive (2000) and reaffirmed in Art 4-10 of the Digital Services Act (2022) - governments have handed the reins over network society to its private infrastructure providers. By doing so, governments have tapped into the governing propensity of platforms not just as intermediaries or gatekeepers of online content, but as corporate actors which are inherently immune/self-governing actors with a long-standing history of “sovereignty-sharing” with government. Through this corporate prism the extraordinary “sovereign” role of platforms in cyberspace becomes intelligible.

Speaker Profile: Uta is Professor of Law and Technology at Southampton Law School. Her research interests have been broad ranging, mostly concerning governance questions of the internet - its territoriality, dominant corporate actors, its building blocks (like personal data) and its technologies (like predictive algorithms). She is interested in the intersections of related legal regimes (e.g. private and public international law; privacy and data protection), comparative law, and critical legal readings of developments in the law-and-technology field.
Uta has been published widely, including the monograph Jurisdiction and the Internet (CUP, 2007, ppb 2010), the edited collections The Net and the Nation State (CUP, 2017) and Data-Driven Personalisation in Markets, Politics and Law (CUP, 2021, co-editor J. Eisler) and the textbook Information Technology Law (5th ed, 2016, co-authors Diane Rowland and Andrew Charlesworth).

2. Martin Husovec, “The Missing Link: Trusted Content Creators and the Future of Online Curation”

Abstract: Contemporary platform regulation is largely preoccupied with defensive empowerment — equipping users to filter, report, or escape unwanted or illegal content. This lecture contends that the law has systematically neglected the complementary challenge of constructive empowerment: securing for users a meaningful capacity to select the information environments they wish to inhabit. The neglect is not incidental. Platforms have little commercial incentive to cede curatorial control, and the state faces well-founded legitimacy constraints on editorial intervention. The result is a structural gap — a missing institutional link — between users' latent demand for quality content and their ability to act on it.
The lecture diagnoses this gap through the lens of information asymmetry. Online content markets suffer from a pre-consumption quality identification problem: unreliability, sensationalism, and inaccuracy typically become apparent only after consumption. Rational users respond by underinvesting in quality content discovery, causing high-trust, high-cost content to be crowded out not by preference but by epistemic constraint. Against this diagnosis, the lecture proposes Trusted Content Creator (TCC) associations — voluntary, self-regulating bodies that set collective quality standards and certify member content through a portable, platform-agnostic label. The TCC model draws on analogies with collective quality marks in other sectors to show how reputation-based institutions can transmit credible quality signals at scale. The lecture concludes with an account of the tripartite legal framework required: statutory recognition of TCCs as certification bodies, mandatory platform accommodation of TCC signals in recommender system architecture, and incentive-compatible accountability mechanisms to sustain associational integrity.

Speaker Profile: Dr Martin Husovec [pronounced as Husovets, or Husoveck] is an Associate Professor of Law at London School of Economics and Political Science (LSE). Martin investigates questions of innovation policy and digital liberties, in particular, regulation of online digital platforms, intellectual property, and freedom of expression.
He is a year-long expert on platform regulation. Since the adoption of the Digital Services Act, Martin has been training professionals and civil servants from all the regulators around Europe. His book, The Principles of Digital Services Act (Oxford University Press, August 2024) is among the leading publications on the DSA. Martin’s work was repeatedly cited by Advocate Generals at the Court of Justice of the European Union.
At LSE Law School, he leads CJEU and ECtHR Intervention Clinic, where he works with students on pending technology cases. Martin has filed a number of amicus curiae briefs or third-party interventions before the European Court of Human Rights in key cases dealing with digital freedom of expression (see the overview of cases here). He also represented NGOs that intervened in digital technology cases to support the public interest before the Court of Justice of the European Union (Apple v Commission T-1080/23, Zalando v Commission T-348/23, Technius v Commission T-134/24).
Martin is a founder of the Platform Regulation Academy, an organisation dedicated to independent continuous education about platform regulation. He is also one of the rapporteurs of the Council of Europe’s Recommen­dation on Online Safety and Empowerment of Content Creators and Users.
Martin obtained his Ph.D. from the Max Planck Institute for Innovation and Competition, and Ludwig Maximilian University in Munich for his work on injunctions against intermediaries (published with Cambridge University Press, 2017). He is a member of the European Copyright Society (ECS), a group of prominent European copyright scholars. Martin was an advisor to the President of the Slovak Constitutional Court, national ministries in Europe and Asia, and various EU institutions in the areas of intellectual property, digital services regulation, freedom of expression, and privacy.

3. Kate Klonick, “The End of New Governance: Platform Power, Preventive Moderation, and the Geopolitical Turn”

Abstract: A decade ago, scholarship on online speech platforms converged on the idea that the largest user-generated-content services had become “custodians,” “new gatekeepers,” “content cartels,” and of course, the “new governors.” These law review articles described through qualitative empirical evidence that private speech platforms had engaged in governance-like or quasi-legal regimes over online speech through systems of rule-making, enforcement, and something resembling administrative process. They exercised forms of power that the public couldn't see and that in my places, the law could not yet reach. That framing was developed in and for a particular moment and led to investment in a few different theories of change, but principally recognized a model of public administration that is neither a top-down government bureaucracy or a purely market-driven model. Instead, the idea of new governance emphasizes collaboration across government, private, and nonprofit sectors to co-create public services and tackle societal challenges. For a decade, this broad notion of participatory governance seemed like was fait accompli -- trust and safety regimes were professionalizing, civil society organizations to address these issues proliferated, and the dominant reform vocabulary was procedural and technocratic. That moment is over.
This keynote argues that two developments have unfolded in parallel, and that taking them together unsettles both the descriptive truth of the content moderation processes within companies as a form of governance, and the public reaction of those processes as answerable through new governance. The first is structural and predates the current crisis: on speech platforms, scale is not merely a market-power variable but a governance-capacity variable. Content moderation, multilingual review, due process, and error-correction carry large fixed costs — and platforms have responded to those costs by transforming the underlying activity itself. AI now performs the vast majority of moderation at scale, and, more consequentially, the reactive "keep-versus-delete" model that defined the last two decades is giving way to a proactive paradigm of up-ranking pioneered by TikTok: rather than removing content after the fact, platforms increasingly govern speech by tuning algorithmic distribution, suppressing reach for content deemed sensitive, unverified, or borderline while leaving it nominally available on the user's own profile while pushing pre-approved content broadly. The dominant regime is no longer tinged with First Amendment values of binary removal and adjudicated exception; it is, for better or worse, a regime of pre-emptive visibility management. Both the process and the presumptions of content moderation have flipped from where they stood in 2016.
The second development is the more consequential one, because it concerns the means by which a democratic society would ordinarily contest the changes just described. The disappearance of meaningful due process, or even tolerance for dissent, inside platforms, the migration toward a prior-restraint or pre-publication filtering model of algorithmic suppression, and the rendering of moderation itself invisible to the user are precisely the kinds of shifts that, a decade ago, would have generated regulatory response, civil-society mobilization, and the kind of multi-stakeholder reform conversation that gave new governance its plausibility. That capacity for pushback is now itself in retreat. Between the Musk acquisition of Twitter, the DSA's entry into force, the launch of ChatGPT, and the return of an American administration that treats European platform regulation as a trade hostility, platform governance has moved from a domain of technocratic reform or attempts to get a seat at the governance-table to one of inter-state contestation. Trust and safety teams have been dismantled. The scholarly and civil-society infrastructure that documented and challenged platform conduct has been, in the U.S., defunded, deplatformed, or politically delegitimised. Automation has quietly displaced human adjudication. And the question this conference asks — whether platforms exercise state-like power — now has to be asked alongside a more uncomfortable one: state-like power on whose behalf, and against whom?
With this question in mind, the argument that follows is that the quasi-sovereign framing of platforms, which served the field well for a decade, is reaching the limits of its usefulness as a reform vocabulary — not because it was wrong, but because the surrounding state system it implicitly presupposed has itself become unstable. The keynote closes by considering what this implies for European regulators, for the scholarly project this conference represents, and for a research agenda built on the premise that the central problem was getting platform governance right.

Speaker Profile: Kate Klonick is an Associate Professor at St. John's University Law School, a fellow at the Brookings Institution, Yale Law School’s Information Society Project, Harvard Berkman Klein Center and a Senior Editor at Lawfare. Her writing on online speech, freedom of expression, and private internet platform governance has appeared in the Harvard Law Review, Yale Law Journal, SCIENCE, The New Yorker, the New York Times, The Atlantic, the Washington Post and numerous other publications. From 2023 to 2024, she was a Fulbright Schuman Innovation Scholar in the European Union where she was a Visiting Professor at SciencesPo researching and writing about the Digital Services Act and Digital Markets Act.