The focus of Moritz Schramm’s examination of core aspects of digital governance in the “online age,” which we are delighted to welcome to the Cambridge Studies in European Law and Policy, is the issue of “content moderation.” This might seem a somewhat abstruse starting point for the investigation. In fact, for many people, content moderation is at the core of digital governance as it affects their online lives. Schramm defines content moderation as “the umbrella term for social media companies’ governance of online communication.” It is the process of reviewing (and policing) user-generated content placed on, as noted, social media websites. The control of user-generated content – that is, speech – is important because it clearly links to normative principles we hold dear, around freedom, human dignity and respect, and equality.
These values are important, as Schramm’s analysis makes clear, in ways that cut across the traditional divides of public law and private law. Thus, Schramm’s approach supplements the existing approaches focused on constitutionalism, liability, and private governance by invoking the regulatory power of “administrative law,” which is one of the paradigm elements of the legitimate control of the exercise of (public) power. So, while Schramm cleaves to the mechanisms of public law, he sets aside constitutionally inspired approaches as being too loose knit and indeed too contested to be of use in offering a framework of recourse for digital “consumers.”
Examining two core cases of the Meta Oversight Board and the out-of-court dispute settlement bodies foreseen in the European Union’s Digital Services Act, Schramm notes that these entities “emulate” adjudicatory mechanisms which have evolved in the context of the growth of administrative law at the national level. The examination of emulation – a practice long seen by legal comparativists – is the analytical heart of the book.
It is important for Schramm’s argument that we acknowledge that administrative law can work in contexts which escape the state. It does not matter who infringes private rights. The capaciousness of administrative law can also stretch to the governance of private rights and infringements by private actors, notably the large corporates who, in the context of the emergence of increasingly disruptive digital technologies, exercise almost unheard of levels of power over the ordinary lives of citizens.
But the issue is even bigger than this. For Schramm, we are seeing the likely first signs of a major transformation of law, suited for the global, digital age. Schramm provides in the text some brief comments about the aftermath of the US Presidential Election in November 2024, which fall, as he notes, into the box marked “for future investigation and research.” However, the complex relationships between corporate power and public power which we have seen emerging in those weeks and months will need to be mapped and tracked as we go forward. Disruptive technologies, especially digital technologies, will remain at the core of the enquiry. As ever with the most important topics, there will be further work to be done in the future, but it will be able to build upon this pioneering and original study of how law can frame and control mechanisms of content moderation.
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