UC Irvine Journal of International, Transnational, and Comparative Law

In remarkably short order, there has been growing convergence, especially in academia and civil society, around the idea that major social media platforms should use international human rights law (IHRL) as the basis for their content moderation rules. Even platforms themselves have begun to agree. But why have these legendarily growth-obsessed companies been so quick to voluntarily say they are jumping on this bandwagon? Afterall, advocates for incorporating IHRL into content moderation governance generally envision it operating as a constraint on social media platforms’ operations. There are both encouraging and less encouraging explanations. For the glass half-full types, there is the straightforward explanation that perhaps these companies genuinely care about human rights. But there is also a less optimistic possibility: companies are embracing the terminology so readily because they know that, in reality, it will not act as much of a constraint at all. This is the prospect explored in this Article. This Article is a sympathetic critique of the contributions IHRL can make to content moderation, highlighting the very real limits of IHRL as a practical guide to what platforms should do in many, if not most, difficult cases. It surveys the many arguments in favor of IHRL as a basis for content moderation rules. Ultimately, however, it argues that failing to acknowledge the considerable limitations of IHRL in this context will only serve the interests of platforms rather than their users by giving platforms undeserved legitimacy dividends, allowing them to wrap themselves in the language of IHRL even as what is required by that body of norms remains indeterminate and contested.