Social media as services of general interest: judicial control of moderation policies and the right to digital existence

Abstract

Social media platforms have become relevant infrastructure for collective life and a daily presence for an increasingly substantial segment of contemporary society, which makes the way their moderation and sanction policies affect users legally increasingly essential and significant. In that context, the problem investigated consists of discussing whether it is possible to ground judicial intervention in social media in favor of users regarding the application of these policies, especially based on the qualification of these platforms as services of general interest. To that end, a hypothetical-deductive approach is adopted with a monographic procedure, drawing on bibliographic and documentary research applied to the Brazilian legal system. It is concluded that such intervention is possible, lawful, and advisable to a certain extent: social media platforms, due to their structural connection with fundamental rights, their use of public infrastructure, and their collective nature, are even if only partially subject to the administrative-legal regime, which grounds a right to digital existence – here in understood as the right to exist, be seen, access goods and services, relate to others, and work in the digital environment. At the applied level, this recognition guides principles such as soft deference to platforms, the requirement of transparency and algorithmic explainability, the prohibition of permanent sanctions, and the swift granting of preliminary injunctions.