Social media have revolutionised our society and led to major democratic, economic, social and environmental challenges. Following the recent adoption by the European Union of an ambitious legal framework to regulate social media, the Conseil d’État publishes its 2022 annual study on the same subject, making 17 concrete suggestions for rebalancing in favour of users, giving the authorities more power to regulate, and planning for the future.
Like most major technological innovations, there is good in social media, which should be promoted, and bad, which we must guard against. At a time when the European Union has adopted two very important European regulations, the Digital Services Act (DSA) and the Digital Markets Act (DMA), which have set up an ambitious regulatory framework for social media aimed at setting out the obligations of the major platforms, the Conseil d’État is the first public institution to propose an analysis of the new system and make operational suggestions for using it as effectively as possible.
After first analysing what social media are, the complex legal framework that applies to them and the implications of their spectacular development in recent years, the annual study of the Conseil d’État makes 17 recommendations, which do not, in essence, involve the adoption of new standards, but rather rebalancing in favour of users, giving authorities more power to regulate and planning for the social media of the future.
Giving back control to the user
The study emphasises the need to rebalance the relationship between users and platforms, some of which now have the economic power of States. The study particularly recommends giving users control over how their rights are exercised. Today, users have no choice but to accept all the terms and conditions of use (T&Cs) proposed and never have the opportunity to negotiate them. That is why the Conseil d’État particularly recommends the creation by the European Commission of a consultation body bringing together all stakeholders (users’ organisations, platforms, etc.) to jointly draft minimum standards for T&Cs and privacy policies. The eventual goal would be to set up a true “right to participation” for users or their representatives.
At the same time, the Conseil d’État suggests encouraging features and settings that would allow each user to know their rights and control how they wish to use social media, particularly in respect of recommended, blocked or notified content. To that end, the attention design of interfaces could be improved to make users aware of their consumption mode (screen time, validation of content before transfer, offensive speech alerts etc.).
Protecting rights and protecting victims
The issue of protecting minors and victims from violations on social media also led to several recommendations. Without calling into question the principle of anonymous expression, the Conseil d’État particularly recommends the generalisation of the use of digital identity solutions and trusted third parties. Eventually, such use could be made mandatory across Europe in a revised version of the DSA.
The study further stresses the importance of users knowing who to turn to in the event of malicious behaviour or unlawful practices, or if they find that their rights (removal and portability of data) are inadequately protected by platforms. The Conseil d’État believes that the current complaint and reporting system is too sporadic and confusing, and thus unsatisfactory. That is why it is advocating coordination between the different reporting platforms in creating a single reporting platform, and also by making reporting buttons more accessible on each application.
At the same time, the study recommends investing in research to improve the technical tools that detect violations and can process a large volume of reports. Regarding more specific breaches of the GDPR, the Conseil d’État recommends the preparation of a doctrine of use for the reuse of personal data by government agencies and companies, and augmenting the resources of the French data protection authority (CNIL) to combat ignorance of the GDPR.
Giving the authorities more power to regulate effectively
The authorities must be able to act to implement the ambitious regulation framework set up by the European Union with the DSA and the DMA in the best possible way. The Conseil d’État recommends quickly setting up an informal working group including national regulators and the European Commission, and creating a cross-disciplinary monitoring committee reporting to the Commission.
On a national level, it suggests creating an interdepartmental expert service with reinforced technical competencies in the area, and a national network of digital affairs regulators to improve coordination between the various parties involved (Arcom, CNIL, Arcep, DGCCRF etc.)
It also recommends more intensive use of social media by government agencies to better reach certain groups and promote internal working that is less vertical and more cooperative.
Preparing for the future now
While the DSA and DMA constitute major steps forward, the authorities must continue to monitor social media issues as these media are changing extremely fast, making regulation difficult. For example, the search for “digital sobriety” must guide all future decisions about digital affairs.
Also, work on targeted advertising, private messaging and metaverses must continue, as they relate to the continuity between the real and virtual worlds.
Finally, the question of new rights relating to digital technology must be addressed, such as the right to digital death or the right of heirs to access the data of the deceased. The Conseil d’État recommends the initiation of Europe-wide or even international negotiations to draw up a charter of fundamental rights for the digital age.
Download the 2022 annual study in French