Laily UPN
The rapid evolution of the digital economy has fundamentally altered the relationship between individuals and the virtual environments they inhabit, rendering traditional legal frameworks centered on consumer protection increasingly obsolete. In his 2023 publication, Social Law in the Digital Age, and the accompanying paper, "Ushering in a New Era of User Rights," legal scholar Tong Lihua argues that the prevailing legal discourse, which treats online interactions primarily as commercial transactions, fails to capture the profound social and political dimensions of life in the digital era. As platforms evolve from mere service providers into pervasive governance structures, Tong proposes a paradigm shift toward a "user rights" framework designed to check the unprecedented "digital power" wielded by private tech giants.
The Emergence of Digital Power and the Failure of Traditional Models
For decades, the legal treatment of the internet was often dismissed through the "Law of the Horse" analogy—a term coined by Judge Frank Easterbrook in 1996 to suggest that there is no need for a specialized body of law for the internet any more than there is a need for a law of the horse. Easterbrook argued that existing laws regarding contracts, torts, and property were sufficient to handle disputes involving new technologies. However, Tong Lihua asserts that digital platforms represent a distinctive legal condition that horses never did. Unlike incidental subjects of law, platforms have become the very infrastructure of modern existence, exercising a form of authority that blurs the lines between private business and public governance.
This "digital power" is characterized by the ability of platforms to unilaterally set the rules for communication, commerce, and social organization. When a platform removes a user, it is no longer comparable to a shopkeeper asking a customer to leave a store. In the contemporary context, a creator removed from a platform may lose a community built over a decade; a professional may lose their livelihood; and a citizen may lose their primary channel for political participation. The scale of this influence suggests that platforms are not merely selling products but are governing the transnational virtual environments where billions of people work, speak, and socialize.
Chronology of the Shift: From Information Superhighway to Digital Sovereignty
The transition toward the current crisis in platform governance has occurred over three distinct phases:
- The Era of Permissionless Innovation (1990s–2000s): During this period, regulations like Section 230 of the Communications Decency Act in the United States and similar "safe harbor" provisions globally sought to protect nascent platforms from liability. The focus was on growth, and the internet was viewed as a separate, "virtual" world.
- The Rise of the Data Economy (2010s): As platforms consolidated power, the business model shifted toward data extraction and algorithmic ranking. The "consumer" model became the standard, where users "paid" for free services with their data and attention.
- The Governance Crisis (2020s–Present): With the rise of generative AI, social media’s impact on mental health, and the central role of platforms in political discourse, the limitations of the consumer model became undeniable. Tong’s work arrives at this critical juncture, advocating for a legal recognition of platforms as public-function entities.
Supporting Data: The Magnitude of Platform Dependency
The necessity for a "user rights" framework is underscored by the sheer scale of platform integration into global economies. According to industry reports from 2023, the global "creator economy" is estimated to be worth over $250 billion, with millions of individuals relying entirely on platforms like YouTube, TikTok, and Instagram for their income. Furthermore, a 2023 study on digital behavior indicated that the average user spends approximately six hours and forty minutes online daily, with a significant portion of that time spent within "walled garden" ecosystems controlled by a handful of companies.
The economic and social exit costs are staggering. For instance, data from small business associations indicates that over 70% of modern small-to-medium enterprises (SMEs) view social media presence as "critical" or "essential" for survival. When these platforms change their algorithms or terminate accounts without due process, the impact on the user is not merely a "defective product" issue but a systemic threat to their economic and social rights.
Consumer Rights vs. User Rights: A Crucial Distinction
Tong Lihua’s central thesis is that "user rights" are not merely rebranded "consumer rights." The consumer model is transactional and reactive; it asks whether a buyer was deceived or if a product was faulty. In contrast, the user rights model is constitutional and proactive; it asks whether a person has protection against the arbitrary exercise of power by a governing entity.
The Transactional Fallacy
In a traditional consumer relationship, a person buys a product and the transaction ends. In a user relationship, the interaction is continuous and mediated by algorithms. Users provide "consideration" in the form of attention, metadata, and behavioral data. This creates a governance relationship where the platform acts as an intermediary between the user and the rest of the world.
Informational Asymmetry
While consumer law assumes some power imbalance, the digital era has widened this gap into a chasm. Platforms utilize vast data sets to profile and "nudge" users, often without the users’ knowledge. This opacity makes it impossible for a "consumer" to make an informed choice, as the product itself—the algorithm—is a black box that changes in real-time.
The Proposed Framework for User Rights
Tong argues that if platforms exercise rule-making power, they must be subject to the same principles that limit public authority: transparency, participation, and accountability. A robust user rights framework would include:
- The Right to Process and Explanation: Users should be entitled to know why an account was suspended or why their content was de-prioritized. Decisions that affect livelihoods or reputations must not be made by opaque algorithms without a human-in-the-loop appeal process.
- The Right to Non-Discriminatory Treatment: Platforms should be prohibited from using algorithmic bias to unfairly disadvantage specific groups or individuals based on arbitrary criteria.
- The Right to Rulemaking Participation: As platforms serve as "digital territories," the users who inhabit them should have a mechanism to participate in the creation of the terms and conditions that govern their digital lives.
- The Right to Data and Identity Portability: To lower exit costs and check platform power, users must have the right to move their archives, audiences, and identities across different services, preventing the "lock-in" effect that currently sustains monopolies.
Broader Impact and Global Implications
The implications of Tong Lihua’s work extend far beyond the borders of China. His analysis mirrors global concerns reflected in the European Union’s Digital Services Act (DSA) and Digital Markets Act (DMA), which seek to impose "due diligence" obligations on very large online platforms (VLOPs). However, Tong’s focus on "Social Law" adds a unique dimension, suggesting that these issues are not just matters of market competition or administrative regulation, but of fundamental social justice.
Industry reactions to such proposals are typically divided. Tech giants often argue that stringent "user rights" requirements could stifle innovation and burden companies with excessive litigation. Conversely, civil society organizations and labor advocates argue that without these protections, the digital age will be defined by a new form of "digital feudalism," where a few private entities own the digital land and the users are merely tenants at will.
Fact-Based Analysis of Future Trends
As artificial intelligence becomes more integrated into platform ecosystems, the urgency of the "user rights" model is expected to grow. AI chatbots and algorithmic management tools in the gig economy are already exercising direct control over human behavior. Tong’s argument suggests that without a legal shift, we risk a future where digital power is both absolute and invisible.
The value of the "user rights" concept lies in its ability to address the root cause of digital disputes: the unchecked power of the platform. By shifting the legal focus from isolated misconduct to institutional design, Tong Lihua provides a roadmap for rebalancing power in the 21st century. The central question for future legislation will be whether governments have the political will to treat platforms not as ordinary shopkeepers, but as the architects of the modern public sphere.
Conclusion
The law may continue to describe online life in the language of commerce, but the reality of the digital age is far more complex. As Tong Lihua illustrates, we are not just shopping online; we are living there. The transition from consumer rights to user rights represents a necessary evolution in legal thought, acknowledging that in a world mediated by platforms, the protection of the individual is no longer just a matter of market fairness, but a prerequisite for a just society. As platforms become the unavoidable architecture of public life, the legal community must decide whether to remain tethered to the "Law of the Horse" or to embrace a new era of digital constitutionalism.
Nana Wu
Sagoh
