Beyond Consumerism: Tong Lihua and the Legal Framework for User Rights in the Digital Age

The legal landscape governing the digital world is currently undergoing a profound transformation as traditional frameworks struggle to account for the unprecedented influence of global technology platforms. In his 2023 book, Social Law in the Digital Age, and the accompanying paper, "Ushering in a New Era of User Rights," prominent Chinese legal scholar and practitioner Tong Lihua argues that the prevailing "consumer rights" model is no longer sufficient to address the complexities of modern online life. Tong contends that digital platforms have evolved beyond mere service providers into a new form of "digital power" that exercises governance over public discourse, economic opportunity, and personal identity. This shift necessitates a move toward a dedicated "user rights" framework that recognizes platforms as public-function entities rather than simple private vendors.

The Paradigm Shift from Commerce to Governance

For decades, the legal system has largely treated the internet as a marketplace, viewing interactions between individuals and platforms through the lens of commercial transactions. However, Tong Lihua posits that this framing is increasingly obsolete. In the contemporary digital ecosystem, losing access to a social media account is rarely comparable to a customer being denied service at a physical retail store. For many, a platform account represents a culmination of years of professional networking, an archive of personal history, and a primary source of livelihood. When a creator is removed from a platform, they lose access to an audience they spent a career building, often with no viable alternative for reaching that community.

This evolution signifies that platforms are no longer just selling products; they are constructing and controlling the transnational virtual environments in which modern society functions. They determine what speech is visible, which businesses thrive, and how citizens interact with their governments. Consequently, the relationship between a platform and its users has shifted from a market-based interaction to a governance-based relationship. This "digital power" allows platforms to act as intermediaries that set the terms and conditions for human interaction on a global scale.

Challenging the "Law of the Horse"

A central theme in Tong’s work is the rejection of the "Law of the Horse" argument, a term popularized in legal circles by Judge Frank Easterbrook in the 1990s. Easterbrook argued that there was no need for a specific "law of the internet" any more than there was a need for a "law of the horse," suggesting that existing legal principles—such as contract and tort law—were sufficient to handle any new technological context.

Tong argues that platforms, unlike horses, present a unique and distinctive legal condition that requires a specialized approach. He identifies a recurring set of structural features across diverse platform disputes: opacity, dependence, unilateral rulemaking, algorithmic ranking, data extraction, and high exit costs. Whether the issue at hand involves privacy, labor, child welfare, or speech, the underlying problem remains the same: the unchecked rise of platform power over the individual. By focusing on "user rights" rather than "platform regulation," Tong seeks to establish fundamental protections that ensure justice in a world mediated by private entities that perform public functions.

The Inadequacy of the Consumer Rights Model

One of the most significant contributions of Tong’s analysis is the distinction between "consumer" and "user" rights. While the two terms are often used interchangeably in policy discussions, Tong argues that they represent fundamentally different legal relationships. Consumer rights are transactional, focusing on whether a buyer was harmed during the exchange of payment for a product. In contrast, the user relationship is often casual and non-monetary, yet deeply impactful.

In the digital age, users "pay" for services with their attention, personal data, and content. This creates a value exchange that traditional consumer law is ill-equipped to measure. Furthermore, platforms act as infrastructure. They connect creators with audiences and workers with tasks, often using opaque algorithms to control these connections. This allows platforms to extract value and shape incentives in ways that go far beyond the scope of a standard vendor-customer relationship.

Because platforms function as the "field" on which society operates, the harms they can inflict are not limited to defective products or deceptive pricing. They can impact basic personality rights, human rights, and the right to participate in public life. When a platform unilaterally changes its rules or visibility algorithms, it can destroy a business or silence a political movement without providing a clear reason or a meaningful process for appeal.

A Chronology of Digital Legal Evolution

The emergence of Tong Lihua’s "user rights" theory follows a decades-long evolution of internet governance. Understanding this timeline is essential for contextualizing the current push for reform:

• 1996 – The "Law of the Horse" Debate: Judge Frank Easterbrook argues against specialized internet law, setting the stage for decades of "light-touch" regulation in the West.
• Early 2000s – The Rise of the Intermediary: Platforms like Google and Facebook emerge, benefiting from "safe harbor" provisions that shield them from liability for user-generated content.
• 2010-2015 – The Monetization of Data: The "surveillance capitalism" model becomes dominant, shifting the focus of platforms from providing tools to extracting user data for targeted advertising.
• 2018 – GDPR and Privacy Rights: The European Union introduces the General Data Protection Regulation (GDPR), marking the first major shift toward protecting individual rights in the digital sphere.
• 2020-2022 – The Platform Rectification Era: In China, regulators begin a series of "rectifications" of major tech firms, focusing on anti-monopoly measures, data security, and algorithmic transparency.
• 2023 – Tong Lihua’s Social Law in the Digital Age: Tong publishes his comprehensive framework, arguing that the focus must move from sectoral regulation to the fundamental rights of the user.

Supporting Data: The Scale of Platform Dependence

The necessity for a "user rights" framework is underscored by the sheer scale of global platform dominance. According to recent digital trend reports, over 60% of the world’s population uses social media, with the average user spending nearly two and a half hours on these platforms daily. In many developing economies, platforms like Meta’s WhatsApp or Alphabet’s Google are synonymous with the internet itself, serving as the primary infrastructure for both private communication and public commerce.

Furthermore, the "gig economy" has turned platforms into the primary employers for millions of workers worldwide. Data from the International Labour Organization (ILO) indicates that the number of digital labor platforms has increased fivefold over the last decade. On these platforms, algorithms—not human managers—determine work assignments, pay rates, and performance ratings. This shift has created an informational asymmetry where platforms possess vast amounts of data on user behavior while remaining entirely opaque regarding their own decision-making processes.

Proposed Pillars of User Rights

Tong Lihua’s framework suggests several core rights that should be afforded to users to counter the arbitrary exercise of digital power:

1. Right to Transparency: Users should have the right to understand the logic behind algorithmic rankings and the scope of data collection.
2. Right to Contestability: Platforms must provide a meaningful and intelligible process for users to appeal decisions, such as account suspensions or content removal.
3. Right to Non-Discriminatory Treatment: Platforms should be prohibited from using algorithms to unfairly discriminate against users based on personal characteristics or socioeconomic status.
4. Right to Participation: Large-scale platforms that serve as public infrastructure should allow for user participation in the rulemaking processes that affect their interests.
5. Right to Substantive Remedies: When rights are violated, users must have access to legal or administrative remedies that provide more than just a nominal refund or apology.

Broader Impact and Global Implications

The arguments presented by Tong Lihua reflect a growing global consensus that the era of platform self-regulation is coming to an end. In the European Union, the Digital Services Act (DSA) and the Digital Markets Act (DMA) represent similar efforts to impose "gatekeeper" responsibilities on large tech firms. In the United States, debates over Section 230 and antitrust actions against Big Tech suggest a move toward more stringent oversight.

However, Tong’s contribution is unique in its focus on "Social Law." By framing the issue as a matter of social justice and the redistribution of power, he provides a bridge between the individualistic approach of Western privacy law and the state-centric approach of traditional regulatory frameworks. His work suggests that as platforms become an unavoidable architecture of public life, the central question for the 21st century is how to protect the rights of citizens in a world where governments and private platforms share the terrain of power.

The implications of this shift are profound. If the legal community adopts a "user rights" approach, it would necessitate a complete redesign of platform terms of service, algorithmic transparency requirements, and the institutional mechanisms for dispute resolution. It would shift the focus from isolated misconduct to the systemic design of the digital order. As Tong Lihua concludes, the law must stop treating life online as a mere shopping trip and start treating it as the complex, governed existence it has become.