Influencers and Social Media Recommender Systems: Unfair Commercial Practices in EU and US Law

Abstract

In the digital society, the availability of information is both a blessing and a curse. Particularly on social media, the question of how information spreads is mostly engulfed in the commercial interests of platforms who rely on algorithmic governance in managing information flows, and the adversarial approach taken by their users to game algorithms in the pursuit of their own benefits. The interaction between social media platforms and content creators who are engaged in monetization has barely received any scholarly attention. YouTubers deal with issues such as shadow-banning, a practice that entails diverting traffic from some channels and videos on policy grounds, and Instagrammers are increasingly scared of an outright ban from the platform. In growing their online presence, content creators depend on platforms making them visible, which is done through recommender systems. This paper aims to shed light onto how recommender systems affect influencers (also referred to as content creators) in a three step approach. First, it looks at how recommender systems work, and how they are applied by social media platforms to the activity of content creators. Second, the paper discusses the potential unfair competition issues that arise out of the use of recommender systems in relation to content creators. Third, it reflects on the suitability of existing frameworks on unfair competition in the EU and US to tackle the tensions arising between content creators and social media platforms. The study innovates existing literature in two ways. It focuses on content creators not as the perpetrators of harms against consumers or citizens, but as the potential victims of social media platforms, thereby providing an illustration of legal issues relating to social media influencers beyond advertising law. Moreover, it revolves around content moderation as an expression of algorithmic governance, with a particular focus on the impact of this governance not on the users-as-audience, but on the users-as-producers, who monetize content as a living.