Speech as Monetized Content: Between Commerce
and Politics
The current system of content monetization primarily concerns
speech. It is one of the examples of where market meets democracy and
lines become blurred between market goals and the protection of
constitutional rights. Content is not a product which can be addressed only
by relying on the tools of product safety or consumer law. It also
represents expressions of users, thus acquiring a constitutional value.
Monetizing from content affects how ideas and opinions flow online. The
case of “disinformation for hire” has increasingly spread through
influencers.34 Disinformation about COVID-19 vaccination is only one
example of the questions raised by the monetization of harmful content.
The rise of influencer marketing, as well as other non-advertisingrelated monetization activities of content creators, has underlined this
constitutional tension in content monetization. Influencers do not limit
their activities to advertise products or promote themselves, but rather
they increasingly engage with political topics, including areas of public
interest.35 For instance, the advertisement of a bag could also turn into a
call for animal rights, the sharing of reviews on a new private transport
can turn into a critique of the public system, or even our own body and
image can become a political manifesto for diversity and to tackle
discrimination. Even if this is not necessarily a harmful trend, this
situation makes particularly difficult not only applying legal standards to
commercial speech when this form of expression turns into political
speech.
The relationship between commercial and political speech is not
straightforward.
36 Even if courts in Europe and U.S. have not drawn a
clear line between these two forms of expression, constitutional
democracies tend to recognize less protection to commercial speech
compared to political speech.37 It is not unusual to find restrictions to
speech related to the advertisement of tobacco products or alcoholic
drinks, and this trend can also be examined when looking at other fields
such as geographical indications. The same consideration does not fully
extend to political speech, which is the foundation of constitutional
democracies. However, forms of expression like commercial communications, or generally speech, which, for some constitutional
democracies, fall within the umbrella of freedom of speech, in other
states, may not be given the same relevance.38 The different values around
free speech as also conditioned by moral and/or socio-political
considerations are the reasons for different degrees of constitutional
protection.39
The blurring line between political and commercial speech introduces
a new layer of complexity in content monetization. It is challenging to
define expressions as commercial when they discuss political topics or
topics in the general public interest.40 Indeed, political speech is likely to
pull commercial speech inside a broader scope of protection (i.e.,
magnetic effect), with the result that potential limitations of this kind of
speech would be required to pass a strict balancing test that weighs other
constitutional safeguards or legitimate interests. In other words, when the
market economy meets the marketplace of ideas, it is not easy to draft a
clear line between the two dimensions. This framework also increases the
obstacles to address the monetization of harmful content dealing with
topics in the public interest. In other words, the protection of political
speech contributes to extending the protection of commercial speech, thus
limiting the possibilities to tackle misleading forms of commercial speech
and their monetization.
In practice, whenever an influencer also engages with topics of public
interest, such as environmental issues or a global pandemic, but still
advertises their products and monetizes from this activity, we are
addressing the constitutional question of content monetization. Indeed,
the magnetic effect attracting commercial speech into the framework of
political speech raises questions on how to address the boundaries
between commercial and political and how to limit the exploitation of this
relationship, as particularly underlined by the case of “disinformation for
hire” and generally by the spread of disinformation and misinformation
on social media.
While lucrative and attractive for freelancers who want to use their
creative talents for entertainment through content creation, social media
influencing is often affiliated with dangers arising out of manipulative
behavior that has an undisclosed commercial intent. If a fitness influencer hides the fact that his physique is built on steroid injections in order to
sell his own fitness supplements,41 his followers will be more prone to
buy these supplements as aspirational products.42
So far, advertising laws adopted to protect consumers dictate that
commercial communication must be disclosed, and European reforms on
platform governance further crystalize disclosure duties—for example,
the Digital Services Act.43 The exponentially increasing complexity of
supply chains and stakeholders partaking in online private ecosystems
mirrors an increasing lack of coherence in the interplay of various rules
at different governance levels. However, the European approach is only
an exception. Most of the content monetization system of governance is
primarily governed by contracts and rules defined by social media
platforms.44 In this case, the future of content monetization is increasingly
shaped by multiple trends across platform governance and different
approaches to the law and policy of advertising.
