Hybrid Speech Governance

New Approaches to govern Social Media Platforms under the European Digital Services Act?

Abstract

The normative development of communication rules on online platforms puts traditional notions of rulemaking and rule application in trouble. The overlap, interdependence, and inseparability of private and public communication rules on social media platforms should therefore be analyzed under the lens of a specific category: hybrid speech governance. This perspective can help to find appropriate approaches to contain private power without simply transferring state-centric concepts unchanged to platform operators. This applies to questions of the basis for validity of communication rules, rule of law requirements, and fundamental rights obligations. The EU’s Digital Services Act (DSA) adopts this perspective of hybrid speech governance and thus finds initial legislative answers to the questions raised. Art. 14 DSA is noteworthy in that regard, but it is only the beginning of the story. Academia, practice, and jurisprudence will have to flesh out the DSA’s approaches to hybrid speech governance in detail. In particular, the current parallel debate in the U.S. on the question of the constitutional obligations of social media platforms could benefit from this European approach as a source of inspiration–it does not seem out of the question that the Supreme Court will add a balancing model to the current dichotomy of state action doctrine. Only such a balancing model can do justice to the phenomenon of hybrid speech governance, for platform governance and beyond.