The Governance of Content Monetization
In the last years, the monetization of content has received increasing
attention from regulators around the world, for instance in addressing the
need to protect vulnerable groups like children.45 In the consumer space
alone, monetization has led to alarming enforcement questions for
consumer law, as detection at scale remains very difficult to achieve for
public authorities: influencers are too many to keep track of, and digital
monitoring is lagging behind.46 In other words, while in enforcement
practice it may already be difficult to distinguish an ad—which needs
disclosure—from a personal post by a content creator, it is even more challenging to draw a line between a commercial and a political post,
where creators amplify political campaigns.47
During the pandemic, a lot of governments around the world used
social media influencers to raise awareness about the importance of
vaccination and social distancing.48 Setting aside the importance of public
policy objectives, without the disclosure of contracts between the
government and influencers, audiences were only able to perceive that
whatever statements such influencers would make on the pandemic would
be their own opinions and stances. This led to some awkward situations
when, months later, some influencers pivoted on their contractual
obligations, and started promoting completely opposite messages relating
to these public policies (e.g., changing their mind about supporting social
distancing), leaving audiences in disbelief as to their real opinions on the
matter.49
These challenges are also related to the private governance of content
monetization. As private entities, platforms have the freedom of contract
to set out the terms of the transactional relationship pursued with its users,
thus governing content by a mix of technical and private norms. The
liberal approach adopted at the end of the last century enabled social
media platforms to develop without any considerable legal limitations
aimed specifically at online transactions and other activities. In addition
to this, limited information literacy and available resources, as well as
legal uncertainty around the applicability of old rules to new technologies,
have led to a slow, and mostly reactive approach to the enforcement of
the law. In this space, social media platforms, able to control users at
scale, consolidated their own community guidelines in relation to user
behavior in areas of public contention, such as criminal activities (e.g.,
terrorism content or child pornography) or intellectual property
infringements, to the detriment of other areas where conduct standards
could also be developed (e.g., consumer protection).50 As public
enforcement is lagging behind, private regulation plays a highly important
role in the monitoring of monetized content. In these spaces governed by different standards, the monetization of
political speech raises questions on how to address the overlap between
market and democracy. In the European framework, the Digital Services
Act has been just a first step to address the challenges of content
moderation on social media. The European Commission has also
launched a new proposal on transparency and targeting of political
advertising.51 These rules will require more transparency in the
dissemination of any political ad. They will need to be clearly labeled and
include information about the source and the amount paid.52
Nonetheless, the magnetic effect can play a different role due to the
different constitutional values. Consumer law in Europe could play an
important role in coordinating the relationship between market and
democracy. This role would result from the different constitutional
approach to freedom of expression in Europe. In the U.S. framework, the
broad protection of the First Amendment driving the scope of consumer
law could lead to an increasing attraction of commercial speech within
the framework of political speech without recognizing rights of users to
understand and challenge deceptive behaviors. Some saving grace might
come from the proposed Honest Ads Act, aimed at requiring online
political advertising to adhere to similar disclosure requirements as TV,
radio and print advertising.53 More specifically, in electoral law, the
Federal Election Commission (FEC) just proposed a rule that would lead
to the disclosure of political advertising online, under the labels of “paid
by.” As the rule has already come under fire, it remains to be seen to what
extent the U.S. legislature will follow the transparency trends proposed
by European Union reforms.
Content monetization underlines the complicated relationship
between commercial and political speech in the digital age. The creation
and expansion of new business models to monetize content and the
growth of influencer marketing have amplified the traditional questions
related to the boundaries between market and democracy. This effect
provides a critical angle to reflect on how commercial speech addressing
topics in the public interest can be exploited to access a broader protection and escape the limits imposed by regulation of commercial speech. This
challenge is increasingly relevant when looking at the possibility to
monetize from content that can be considered as unlawful. The
framework discussed above raises constitutional questions for
constitutional democracies. The differences across the protection of
freedom of expression across the Atlantic are leading towards a situation
where, the protection of the First Amendment could amplify this
challenge in the US framework, while in the EU, consumer protection is
expanding through new legislation addressing content monetization in
platform governance and political advertising.
