Terms of service and bills of rights: new mechanisms of constitutionalisation in the social media environment?

ABSTRACT

From a cursory look at the terms of service of the main social networking websites, it is immediately possible to detect that Facebook’s show a peculiar configuration. Although they represent a mere contract between private parties, these terms adopt the traditional jargon of constitutional texts and articulate their contents in terms of rights, principles and duties. This curious pairing between norms regulating social media and the constitutional sphere is also apparent in a series of non-binding documents that are unequivocally named ‘bill of rights’ and seek to articulate a set of principles to protect social media users. This paper examines whether the emergence of a constitutional tone in this limited number of texts could be related to the effective, or aspirational, constitutional function that these documents exercise. The identification of a series of significant shortcomings will lead to exclude that social media’s terms of service and bills of rights of social media users currently play a constitutionalising role. Nevertheless, the possibility to theoretically justify the use of these documents as mechanisms of constitutionalisation in the social media environment will be adduced as an evidence of the potential constitutional aspirations of these texts.

KEYWORDS:

• Social media’s terms of service
• Internet bills of rights
• digital constitutionalism

Acknowledgements

In no particular order, the author would like to thank Corentin Baslé, the researchers of the ‘Global Constitutionalism’ unit at the Alexander von Humboldt Institute for Internet and Society (HIIG) of Berlin Dr Christian Djeffal, Jörg Pohle and Julian Hölzel, his supervisor Dr TJ McIntyre, Daniel Goode, the anonymous reviewers of IRLCT, and the editors of this special issue for their helpful comments, constructive criticism and constant encouragement.

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Edoardo Celeste http://orcid.org/0000-0003-1984-4142

Notes

1 Facebook, Google+, Instagram, LinkedIn, Pinterest, Snapchat, Tumblr, Twitter, YouTube have been taken into account as a representative example of the main social networking websites.

 

Additional information

Funding

The author gratefully acknowledges the support of the Irish Research Council and of the Sutherland School of Law, University College Dublin.