Redefining Digital Governance: Tong Lihua and the Emergence of User Rights in the Platform Economy

The traditional legal frameworks that govern commercial transactions are increasingly failing to capture the complexity of the modern digital experience, leading scholars to propose a fundamental shift in how the law views the relationship between individuals and technology giants. 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 Tong Lihua argues that the prevailing "consumer rights" model is no longer sufficient to protect citizens in an era where digital platforms function less like marketplaces and more like sovereign governors of public life. This evolution in legal theory comes at a time when global regulators are grappling with the "digital power" wielded by a handful of massive corporations that control the infrastructure of communication, commerce, and social identity.

The Paradigm Shift: From Consumers to Users

For decades, the legal system has treated online interactions primarily through the lens of contract and consumer law. If a service was provided, a contract was formed; if a product was defective, a consumer claim was filed. However, Tong Lihua posits that this framing is fundamentally misaligned with the reality of the 2020s. When a creator is removed from a platform, they do not merely lose a service provider; they lose their livelihood, their community, and years of intellectual labor. When an algorithm determines the visibility of political speech, it is not merely "selling" a feed, but exercising a form of public authority.

Tong’s work highlights a critical distinction: consumers engage in discrete transactions, whereas users exist within an ecosystem. The "user" is not just a buyer of services but a subject of a digital jurisdiction. This jurisdiction is characterized by what Tong calls "digital power"—a form of authority that blurs the lines between private business and public governance. Platforms today build and maintain virtual environments where people work, trade, organize, and participate in the democratic process. Consequently, the harm caused by a platform’s arbitrary decision-making can transcend financial loss, impacting fundamental human rights, such as the right to free expression, the right to work, and the right to social participation.

Historical Context and the Law of the Horse

The debate over whether "platform law" should exist as a distinct field is not new. In legal circles, the "law of the horse" is a famous metaphor used by Judge Frank Easterbrook in 1996 to argue against specialized sets of laws for new technologies. Easterbrook suggested that just as there is no need for a "law of the horse" (since horses are handled by general contract and tort law), there was no need for a "law of the internet."

Tong Lihua’s 2023 thesis serves as a contemporary rebuttal to this skepticism. He argues that unlike horses, digital platforms present a unique structural condition that general law cannot adequately address. The issues of privacy, labor, speech, and child welfare on platforms are not isolated incidents; they are symptoms of a single, underlying phenomenon: the unchecked rise of platform power. This power is sustained by specific structural features, including algorithmic opacity, unilateral rulemaking, high exit costs, and the extraction of data as a form of non-cash consideration. By focusing on "user rights" rather than "platform regulation," Tong shifts the focus from the technology itself to the fundamental protections required for the individuals subject to it.

Chronology of the Digital Rights Movement in China

To understand the significance of Tong’s 2023 contributions, one must look at the trajectory of digital regulation in China over the last decade:

• 2010–2018: The Era of Rapid Expansion. Platforms like WeChat, Alibaba, and Meituan grew with minimal regulatory interference, focusing on user acquisition and ecosystem building.
• 2019–2020: Initial Oversight. Concerns regarding data privacy and "big data price discrimination" began to surface in public discourse.
• 2021: The Regulatory "Storm." China introduced the Personal Information Protection Law (PIPL) and the Data Security Law. The State Administration for Market Regulation (SAMR) issued record fines against tech giants for anti-competitive behavior.
• 2022: Algorithm Accountability. The "Internet Information Service Algorithmic Recommendation Management Provisions" took effect, marking one of the world’s first attempts to regulate the logic behind digital feeds.
• 2023: Theoretical Synthesis. Tong Lihua publishes Social Law in the Digital Age, providing a comprehensive legal theory that integrates these piecemeal regulations into a unified framework of "user rights."

Supporting Data: The Asymmetry of Power

The necessity of a user-rights framework is underscored by the sheer scale of platform dependency. As of 2023, global data indicates that the average internet user spends approximately six hours and 40 minutes online daily. In China, the number of internet users has surpassed 1.07 billion, with platforms like WeChat boasting over 1.3 billion monthly active users.

This dependency creates what economists call "high exit costs." For a professional creator or a small business owner, "leaving the platform" is not a viable market choice if the platform holds 80% of the market share for their specific audience. Furthermore, the informational asymmetry is staggering. While users provide platforms with thousands of data points daily—ranging from location history to emotional triggers—the algorithms that process this data remain proprietary "black boxes." Tong argues that this asymmetry makes the traditional "informed consent" model of consumer law a legal fiction.

The Governance Relationship vs. The Market Relationship

A central pillar of Tong’s argument is that the platform-user relationship is a governance relationship. This is evidenced by several key factors:

1. Unilateral Rulemaking: Platforms draft Terms of Service that users must accept in their entirety. These terms can be changed at any time, effectively allowing platforms to "legislate" the digital space.
2. Adjudication: When a dispute arises—such as a banned account or a suppressed post—the platform acts as the judge and jury. There is often no meaningful process for appeal or neutral third-party oversight.
3. Resource Direction: Through algorithmic ranking, platforms decide which businesses succeed and which voices are heard. This is not merely a service; it is the management of a public sphere.

Tong notes that even "free" services are not truly free. Users pay with "attention," which is a resource platforms monetize through advertising and data harvesting. This exchange is far more complex than a standard retail transaction, involving the user’s very identity and social connectivity.

Proposed Framework for User Rights

Tong Lihua does not merely critique the status quo; he proposes a specific set of rights that should form the basis of "Social Law" in the digital age. These include:

• The Right to Procedural Justice: Users should have a right to know why a decision (like a ban or shadow-ban) was made and have a meaningful path to contest it.
• The Right to Algorithmic Transparency: Platforms should be required to explain the logic of their recommendation engines, especially when those engines impact livelihoods or public discourse.
• The Right to Non-Discrimination: Ensuring that algorithms do not unfairly disadvantage certain groups of users based on data profiles.
• The Right to Participation: Large platforms that function as public infrastructure should allow for user participation in the rulemaking process.

Reactions and Broader Implications

The reception of Tong’s work reflects a growing global consensus that the "Wild West" era of the internet is over. Legal scholars in the European Union have noted similarities between Tong’s "user rights" and the principles found in the EU’s Digital Services Act (DSA) and Digital Markets Act (DMA). Both frameworks recognize that "Very Large Online Platforms" (VLOPs) carry systemic risks that require specialized oversight.

However, industry representatives often express concern that overly prescriptive user rights could stifle innovation or make platforms unmanageable. The challenge for regulators, as highlighted by Tong’s analysis, is to balance the protection of individual rights with the operational needs of the digital economy.

Analysis: A New Social Contract for the 21st Century

The implications of Tong Lihua’s research extend far beyond the courtroom. If his framework is adopted, it would represent a new social contract for the digital age. It acknowledges that in a world mediated by screens, the "public square" is now privately owned. Treating these owners as mere "shopkeepers" is a category error that leaves citizens vulnerable to arbitrary power.

By grounding his response in "social law"—a branch of law that typically deals with the protection of the vulnerable and the balance of social interests—Tong is positioning user rights as a necessary check on the "digital sovereignty" of tech companies. As platforms continue to integrate into the fabric of government services, healthcare, and education, the central question of the coming decade will be how to ensure that these digital architects remain accountable to the populations they house.

Tong Lihua’s unique contribution, informed by his decades as a practicing lawyer and advocate for vulnerable populations, provides the intellectual scaffolding for this transition. As he concludes in his work, the law must stop pretending we are only shopping online; it must recognize that we are living there, and ensure that our rights follow us into the digital realm.