New rules, legal cases and settlements: pressure on social media and digital platforms
Disputes in the US and EU regulations have made users more aware of the risks and their rights. An international convention is needed
For over twenty years, digital platforms have enjoyed a privilege unprecedented in the history of law: they are liable for practically nothing. Section 230 of the Communications Decency Act is a US federal law dating from 1996 upon which the impunity of these platforms has been based for years. The European equivalent is the Electronic Commerce, transposed into Italian law by Legislative Decree 70/2003, which established that there was no general obligation on providers to monitor the content they transmitted or stored; they could not be required to monitor such content across the board.
Regulations and rulings
Today, the veil of impunity has been lifted thanks to new legislation, such as the Digital Services Act for Europe, but also to systematic interpretations of existing legislation, according to which social networks are not passive but active hosts: in other words, they play a direct role in the content shared. Protection may also be withdrawn if the platform does not act in good faith towards users and promotes harmful content through its algorithms. The DSA goes even further: it requires large platforms to assess systemic risks to minors, harmful content, digital addiction, advertising profiling, and to adopt proportionate mitigation measures, including modifying recommendation algorithms, limiting targeted advertising and introducing age verification systems.
The fact that algorithms can be addictive was established by the Los Angeles Court in its verdict of 25 March in the case registered as JCCP 5255, which paved the way for a huge number of similar legal actions. Since then, US courts have launched thousands of investigations, often concluding with settlements worth millions with the platforms. The agreed sums will go to the federal states that brought the cases to fund educational or awareness-raising projects, or to individuals who have secured financial compensation for themselves.
In Italia, from 17 February 2024, Article 54 of the Digital Services Act allows users to claim and obtain compensation for damages, both pecuniary and non-pecuniary, for breaches of the obligations imposed on intermediary service providers. Furthermore, under Article 53 of the DSA, any user may lodge a complaint regarding breaches affecting the security of platforms with AGCOM, which has been designated as the digital services coordinator for Italia. This mechanism can also be triggered by associations and organisations acting on behalf of users, paving the way for investigations and potential sanctions.
International Convention
Yet the path to the effective protection of the rights of social media users is still an uphill struggle. This is something anyone who has tried to contact them regarding issues relating to the use of the platform knows only too well. Austria had attempted to introduce new rules with a law that required platforms to establish effective and transparent procedures for handling user reports (Kommunikationsplattformen-Gesetz). The European Court of Justice ruled that this law was at odds with European Union law (judgement of 9 November 2023 in Case C-376/22). Once again, Directive 2000/31/EC came into play, which prohibits Member States from restricting the economic freedom of platforms. In short, a vicious circle of regulations that over the years has effectively enshrined impunity.
