Content Moderation and the Quest for Democratic Legitimacy

Abstract

The paper analyzes the public controversy incited by the introduction of the Network Enforcement Act (NetzDG) in Germany. This law obliges social media platforms to delete unlawful content from their sites and has received international attention as a regulatory blueprint for governing corporate content moderation. The paper describes different ways in which NetzDG was framed in German media reporting, which offered distinct assessments of whether the new law endangered or supported democratic principles and values. Major differences in the public controversy over NetzDG revolved around, for instance, what freedom of expression and the rule of law meant for content moderation and how NetzDG’s regulatory intervention would interact with platforms. The paper finds that a major point of contention thus concerned how to ground content moderation practices and policies in democratic legitimacy. Its analysis demonstrates that the governance of content moderation on social media platforms can open up a site for renegotiating democratic values and principles. As the NetzDG case shows, this can happen without substantively challenging existing laws but by raising the question of how to legitimately apply them to platforms. At stake in this controversy were the underlying logics by which to govern speech online. Different perspectives on this built on distinct understandings of democracy, attributing particular roles and responsibilities to platforms, state institutions, and users. Thus, the paper illuminates that the public controversy over NetzDG, and over the right way to uphold speech laws on platforms, concerned more fundamental questions about the shape of democracy and the distribution of power, agency, and responsibility.