Rifan Muazin
The traditional legal framework that governs online interactions is increasingly coming under fire for being fundamentally misaligned with the realities of modern life. For decades, the law has treated the internet primarily as a marketplace where individuals act as consumers purchasing goods and services. However, as digital platforms have evolved into the primary infrastructure for work, social interaction, and political participation, this consumer-centric model has proven inadequate. Tong Lihua, a prominent legal scholar and Senior Fellow at the Yale Law School Paul Tsai China Center, argues in his 2023 book, Social Law in the Digital Age, that we are witnessing a historical redistribution of power that necessitates a new legal category: "user rights."
Tong’s thesis posits that digital platforms are no longer merely businesses; they have become the seat of a new form of "digital power" that blurs the lines between private authority and public governance. When a platform algorithm determines the visibility of a political speech or a creator’s livelihood, it is performing a function that exceeds the scope of traditional contract or consumer law. This shift marks a critical turning point in legal history, moving from the regulation of transactions to the regulation of digital environments that dictate the terms of human existence in the 21st century.
The Evolution of Digital Power and the Law of the Horse
To understand the necessity of Tong’s proposed framework, one must first look at the history of cyberlaw. In the late 1990s, Judge Frank Easterbrook famously mocked the idea of "internet law" by comparing it to the "Law of the Horse." His argument was that just as there is no need for a specialized body of law for horses—since existing laws regarding contracts, torts, and property cover them—there was no need for a specialized law for the internet. For years, this perspective dominated, suggesting that digital disputes could be resolved through traditional legal silos.
Tong Lihua challenges this dismissal. He argues that platforms, unlike horses, create a distinctive legal condition because they possess structural features that repeat across all sectors: dependence, opacity, unilateral rulemaking, and high exit costs. These platforms do not just exist within the law; they create their own internal "laws" through terms of service and algorithmic design.
The chronology of this shift can be traced through three distinct eras:
- The Open Web Era (1990s–early 2000s): Characterized by decentralized websites and the "Law of the Horse" mentality. Regulation was light, focusing on fostering innovation.
- The Platformization Era (2010s): The rise of "Big Tech" (Google, Meta, Alibaba, Tencent). Platforms became intermediaries for almost all digital activity, and "consumer rights" became the primary tool for redress.
- The Governance Era (2020s–Present): Recognition that platforms act as private governments. This is the era in which Tong’s Social Law is situated, advocating for a transition from "consumer" to "user" as the central legal subject.
The Inadequacy of the Consumer Protection Model
The core of Tong’s argument is that the label of "consumer" is too narrow to capture the stakes of the digital age. A consumer is someone who buys a product; if the product is defective, they seek a refund or a replacement. However, a "user" is someone whose entire professional and social identity may be hosted on a platform.
The data supports the gravity of this distinction. According to recent industry reports, the global creator economy is valued at over $250 billion, with millions of individuals relying entirely on platform algorithms for their income. When a platform deplatforms a creator or shadows-bans their content, the harm is not a "defective product" claim; it is the destruction of a livelihood and a loss of access to an audience built over years.
Furthermore, the "free" nature of many digital services complicates the consumer model. In traditional law, a contract requires an exchange of value (consideration). In the digital world, users provide value through data, attention, and content creation. Because no money changes hands in many instances, traditional consumer law often struggles to find a foothold. Tong argues that "user rights" must account for these non-monetary exchanges, recognizing that attention and data are resources that platforms monetize and, in turn, use to exercise power over the user.
Statistical Context of Platform Dominance
The scale of platform influence is unprecedented. Current data highlights why the "user rights" approach is gaining traction among legal scholars:
- Market Reach: Over 5 billion people globally use social media, spending an average of 2 hours and 23 minutes per day on these platforms.
- Algorithmic Control: Studies show that up to 70% of what people watch on major video platforms is determined by recommendation algorithms, rather than active search.
- Exit Costs: A survey of small business owners using third-party marketplaces found that 65% believed they would go out of business within six months if they lost access to their primary platform, citing the "lock-in" effect of customer reviews and data archives.
These figures illustrate that the platform-user relationship is not a balanced market exchange. It is an asymmetrical governance relationship where the platform acts as the legislator, judge, and executioner within its own digital territory.
A Framework for User Rights
Tong Lihua does not merely critique the status quo; he proposes a specific set of protections that should define the "Law of the User." These rights are designed to act as checks on digital power, ensuring that the private entities controlling public spaces operate with a degree of fairness and accountability.
1. Transparency and the Right to Know
Users should have the right to understand how and why significant decisions are made. This goes beyond reading a 50-page "Terms of Service" document. It involves "algorithmic transparency"—knowing why a certain post was hidden or why an account was flagged.
2. Due Process and the Right to Contest
In traditional law, a person has the right to a hearing before their livelihood is taken away. Tong argues that users deserve a meaningful process for appeals. Currently, many platforms rely on automated moderation that offers little to no human oversight for aggrieved users.
3. Non-Discrimination and Participation
As platforms become the "public square," the right to non-discriminatory treatment becomes paramount. Additionally, Tong suggests that users should have a voice in the rulemaking process of the platforms they inhabit, moving toward a more "democratic" model of platform governance.
4. Substantive Remedies
When a platform’s arbitrary exercise of power causes real-world harm—such as financial loss from an unfair ban or psychological harm from algorithmic manipulation—the law must provide a path for substantive remedies that go beyond a simple account restoration.
Industry and Regulatory Reactions
The proposal for a "User Rights" framework has elicited a variety of reactions from stakeholders.
Legal Scholars and Human Rights Advocates: Many have praised Tong’s work for providing a cohesive theoretical basis for what has previously been a fragmented series of complaints. By framing the issue as "Social Law," Tong bridges the gap between private contract law and public constitutional law, offering a way to hold private companies to public-interest standards.
Tech Industry Representatives: While not responding directly to Tong’s book, industry groups have historically cautioned against "over-regulation" that could stifle innovation. They argue that the flexibility of current "Terms of Service" allows platforms to respond quickly to emerging threats like misinformation and hate speech. Some industry insiders suggest that imposing "due process" requirements on billions of automated decisions would be technically and financially unfeasible.
Government Regulators: There is a growing alignment between Tong’s theories and global regulatory trends. The European Union’s Digital Services Act (DSA) and Digital Markets Act (DMA) reflect a similar shift toward viewing platforms as systemic actors with special responsibilities. In China, recent regulations on algorithmic recommendations and platform competition suggest a move toward the "Social Law" model Tong describes, focusing on the protection of the "weaker party" in the digital ecosystem.
Broader Impact and Implications for the Future
The implications of shifting from a "consumer" to a "user" framework are profound. If the law begins to treat platform access as a fundamental right or a public utility, the very business models of Silicon Valley and Hangzhou may need to change.
Tong Lihua’s contribution is unique because it is grounded in decades of practice. As a lawyer who has worked on protections for vulnerable populations, he views digital power through the lens of social justice. He recognizes that as governments increasingly use private platforms to provide public services—from health updates to tax filing—the platform is no longer just a "vendor." It is an extension of the state’s infrastructure, yet it remains governed by private interests.
As the digital order continues to mature, the central question will not be whether platforms have the right to moderate their space, but whether users have the right to exist in that space without fear of arbitrary exclusion. Tong’s Social Law in the Digital Age provides a roadmap for this transition, suggesting that the goal of law in the 21st century should be to ensure that the "digital power" of the few does not extinguish the fundamental rights of the many.
In conclusion, the law is finally catching up to the fact that we are not just shopping online; we are living there. By establishing a robust framework for user rights, society can begin to rebalance the scales of power, ensuring that the digital world remains a space for opportunity, expression, and justice rather than a collection of private fiefdoms.
Suro Senen
Basiran
