Tong Lihua and the Law of the User: A User Rights-Based Approach to Platform Regulation

The traditional legal framework that governs digital interactions is increasingly out of step with the reality of the 21st-century digital ecosystem. For decades, the law has treated online activity primarily through the lens of commerce, viewing the relationship between individuals and digital platforms as a simple transaction between a buyer and a seller. However, as digital platforms evolve into the primary infrastructure for work, speech, and social organization, this consumer-centric model has become inadequate. This is the central thesis of Tong Lihua’s 2023 book, Social Law in the Digital Age, and his companion research, which argue for a fundamental shift toward a "user rights" framework to address the unprecedented concentration of "digital power."

Tong Lihua, a prominent Chinese legal scholar and practitioner known for his extensive work in public interest law and child protection, posits that digital platforms have transcended their roles as mere businesses. They have become the architects and governors of transnational virtual environments. When a user is banned from a social media platform, they do not merely lose a service; they may lose their professional audience, their personal archives, their primary source of income, and their public identity. In this context, the user is not just an unhappy customer with a defective product claim; they are a subject of a private governing entity that wields significant, often unchecked, authority.

The Emergence of Digital Power and the Failure of Traditional Categories

The core of Tong’s argument lies in the identification of "digital power"—a form of authority that does not fit neatly into the traditional binary of private versus public power. Historically, private law (such as contract and tort law) governed interactions between private parties, while public law (constitutional and administrative law) governed the relationship between the state and the individual. Digital platforms, however, occupy a middle ground. They are privately owned, yet they perform public functions by shaping the public sphere, facilitating government services, and conducting what essentially amounts to private diplomacy.

This shift represents a historical redistribution of power. Platforms now control the "digital space" where people participate in politics, trade, and socialization. They use algorithms to determine what speech is visible and what economic opportunities are available. Because these platforms act as intermediaries for almost all modern social functions, the harm they can cause extends far beyond financial loss. It touches upon fundamental human rights, including freedom of expression, the right to work, and the right to social participation.

Chronology of the Shift in Platform Regulation

The evolution toward a "user rights" perspective can be traced through a series of legal and social shifts over the last three decades:

The Era of Immunity (1990s – Early 2000s): During the early days of the internet, regulations like Section 230 of the Communications Decency Act in the United States provided broad immunity to platforms for third-party content. The goal was to foster innovation by treating platforms as neutral conduits.
The Transactional Era (2010s): As platforms like Amazon, Alibaba, and Uber grew, the law focused on consumer protection and antitrust. Regulation aimed to ensure fair pricing, prevent deceptive practices, and maintain market competition.
The Governance Crisis (2018 – Present): Events such as the Cambridge Analytica scandal and the global "tech-lash" highlighted that platforms were not neutral. China began its "rectification" of the platform economy in 2020, focusing on anti-monopoly and data security. The European Union followed with the Digital Services Act (DSA) and Digital Markets Act (DMA) in 2022, marking a shift toward recognizing platforms as "gatekeepers."
The Social Law Movement (2023 – Forward): Tong Lihua’s work represents the latest stage in this chronology, proposing that we move beyond sectoral regulation (privacy, labor, or antitrust) toward an integrated "Social Law" that protects the holistic rights of the user.

Distinguishing User Rights from Consumer Rights

A critical component of Tong’s framework is the distinction between "consumer" and "user." While these terms are often used interchangeably in casual conversation, their legal implications are vastly different.

Consumer rights are fundamentally transactional. They ask whether a buyer was deceived or whether a product met its advertised standard. User rights, conversely, are grounded in governance. They ask whether a person or organization has protection against the arbitrary exercise of power by the platform they inhabit.

The platform-user relationship is defined by several factors that distinguish it from traditional commerce:

Non-Monetary Consideration: Users often pay for services with data, attention, and content rather than cash. This "free" model masks a deeply extractive relationship where the platform monetizes the user’s social and professional life.
Infrastructure Dependency: Platforms are not just vendors; they are the infrastructure. Leaving a platform often involves "high exit costs." A creator with a million followers on a video platform cannot simply "shop elsewhere" if the platform changes its algorithm or terms of service; their entire career is tied to that specific ecosystem.
Algorithmic Governance: Platforms use opaque algorithms to rank, nudge, and steer user behavior. This is a form of rule-making that happens without the user’s informed consent or the ability to appeal.

Supporting Data: The Scale of Platform Influence

The necessity for a user-rights framework is underscored by the sheer scale of platform dependency. In China, the digital economy accounts for nearly 40% of the national GDP, with hundreds of millions of citizens relying on platforms for everything from grocery shopping to healthcare and legal services.

Tong Lihua and the “Law of the User”: A User Rights’ Based Approach to Platform Regulation

According to various industry reports:

Gig Economy Growth: It is estimated that over 200 million people in China are engaged in "flexible employment" or gig work, much of it managed by platform algorithms.
Information Monopolies: In many jurisdictions, more than 70% of news consumption happens via social media platforms, giving these private entities unprecedented control over public discourse.
Data Collection: A single major platform can collect thousands of data points on an individual user daily, creating an informational asymmetry that makes traditional contract negotiation impossible.

These figures illustrate that the platform-user relationship is not a meeting of equals. It is a relationship of profound asymmetry—financial, informational, and structural.

The "Law of the Horse" and the Need for a New Legal Field

Tong addresses a common critique in legal circles known as the "Law of the Horse." This term, popularized by Judge Frank Easterbrook, suggests that there is no need for a specific body of law for "the internet" any more than there is a need for a "law of the horse." The argument is that existing laws (contracts, torts, property) are sufficient to handle new technologies.

Tong counters this by arguing that platforms present a "distinctive legal condition." Unlike horses, which are incidental subjects of the law, platforms are the environment in which the law operates. The issues seen in privacy, labor, and speech are not separate problems; they are all symptoms of the same structural reality: the unchecked rise of digital power. Therefore, a new legal category—Social Law—is required to address the specific features of this power, such as its opacity, unilateral rulemaking, and algorithmic enforcement.

Proposed Framework for User Rights

Tong’s research outlines several fundamental rights that should be afforded to users to rebalance the digital order:

The Right to Transparency and Explanation: Users should have the right to understand how algorithms make significant decisions affecting their visibility, livelihood, or access to information.
The Right to Meaningful Process and Appeal: Platforms must provide intelligible reasons for enforcement actions (such as account suspensions) and offer a genuine opportunity for users to contest those decisions.
The Right to Non-Discrimination: Platforms should be prohibited from using algorithmic tools to engage in discriminatory ranking or pricing.
The Right to Participation: Large platforms that function as public squares should allow for user participation in the rulemaking process, moving away from unilateral "Terms of Service" that users must accept without negotiation.
The Right to Data Sovereignty and Portability: To lower exit costs, users must have the right to easily move their data, archives, and social graphs between platforms.

Global Implications and Analysis

The shift toward user rights has significant implications for global governance. If platforms are recognized as exercising a form of "digital power" akin to governance, then the legal tools used to restrain states—such as due process and transparency—must be adapted for the private sector.

In China, Tong’s work aligns with the government’s broader efforts to regulate the "disorderly expansion of capital." By framing the issue as one of "Social Law," Tong provides a theoretical bridge between protecting individual rights and ensuring social stability. Globally, this approach mirrors the European Union’s move toward "digital constitutionalism," where the rights of citizens are protected even within private digital environments.

The impact of this shift is twofold. First, it empowers individuals to reclaim agency in a world mediated by AI and algorithms. Second, it provides states with a more sophisticated legal vocabulary to regulate tech giants. Rather than merely asking if a platform is a monopoly, regulators can ask if a platform is a "fair governor."

Conclusion

As digital platforms become an unavoidable architecture of modern life, the law must evolve beyond the shopping-cart model of the early internet. Tong Lihua’s Social Law in the Digital Age serves as a critical intervention, arguing that we are not just consumers in a digital marketplace, but citizens in a digital society.

The transition from consumer rights to user rights represents more than a change in terminology; it is a fundamental reimagining of how power is checked and how justice is administered in the digital age. By grounding platform regulation in the fundamental protections of the user, legal systems can ensure that the historical redistribution of power to digital platforms does not result in a new era of private autocracy, but rather a more equitable and transparent digital order.