Social Media Day: A Failure of Institutional Enforcement

Social Media Day, an anniversary created in 2010 by the Mashable platform to celebrate social media’s power to bring people together, offers a fitting moment to take stock. It emerged at the height of a particular kind of technological optimism. Sixteen years on, the reckoning is worth doing properly.

To begin with, there is genuinely much to celebrate. Social media has given a teenager in a small town the same stage as a television channel. It has enabled families spread across three countries to share an otherwise ordinary Tuesday. It has provided a small Lisbon business with a shop window in São Paulo and Stockholm that no advertising budget could ever have bought.

Social media has also produced careers that did not exist 20 years ago: content creators, influencers, streamers, community managers, and a whole ecosystem of people working in video, audio, design, newsletters and live shopping, as well as the “knowledge entrepreneur” selling courses and mentoring online. Alongside this, it has generated new modes of cultural expression: memes, vertical video, digital communities built around shared aesthetics and interests, fresh forms of civic mobilisation, and an unprecedented global circulation of culture. Connection, culture and commerce are now available at a scale and cost that would have been science fiction a generation ago. These are not trivial benefits, and the instinct to dismiss platforms too readily often overlooks them.

The harms built into social media platforms

Yet there is also plenty to condemn, and the charge sheet is equally real. Feeds are designed to be difficult to leave. Interfaces are built to prompt, hold attention and exhaust users: the familiar dark patterns. Children are only three taps away from material that nobody would hand to them on paper. And crowds, on closer inspection, turn out to be bots.

The next step in many discussions of this issue is to ask whether the good outweighs the bad. From a legal perspective, that is the wrong question. A straightforward cost-benefit exercise can excuse almost any harm if the surrounding benefit is sufficiently great, while the difficulty of measuring both the benefit and the harm undermines the analysis. Social media platforms are grateful for that.

The more relevant legal question is the one for which proportionality analysis was designed: are these social costs necessary to generate the benefits? If the answer is ‘no’, the harms fail at the test of necessity immediately. Connecting people does not require dark patterns. Entertaining them does not require addictive design. Selling advertising does not require capturing a 12-year-old’s attention. Social media platforms will probably make less money as a result. But profit made unfairly cannot be justified, so its loss is not something that should trouble us.

Social media rules already exist

Do we therefore need new European or Portuguese legislation? Not exactly. The legislative reflex is already under way: an initiative is before Parliament to raise the age of digital consent from 13 to 16, with age verification. The European Union is also considering additional rules in the future Digital Fairness Act. But that reflex misdiagnoses the problem. What we lack is not rules.

Concerned about addictive design? The tools are already available. The Digital Services Act prohibits manipulative interfaces, regulates recommendation systems based on profiling, requires the option of a feed that is not based on profiles, and establishes specific duties towards minors. Behind it sits the unfair commercial practices regime, which has monitored consumer exploitation for two decades.

Concerned about minors? They are already prohibited from using these services in the relevant sense. A child under 13 cannot validly consent to the processing of the data on which these services depend. The platforms themselves bar access for under-14s, but do not enforce that restriction. The threshold could be increased to 16, and perhaps it should be, but what about enforcing the prohibitions already in force?

Concerned about bots? By the same reasoning, every account is presumed to be linked to a real person, whereas bots are not. In substance, the prohibition already exists; what is missing is detection and consequences.

Enforcement, not legislation, is the failure

The problem, then, is not a lack of rules. It is institutional, and this is where clarity matters: under-enforcement is both public and private. On the public side, enforcement is slow, underfunded and politically exposed. The European Commission, on its side, and the Consumer Directorate-General, on theirs, cannot open and complete every investigation they should. On the private side, consumers and the associations representing them should be bringing collective injunctions and compensation claims that turn a paper obligation into a cost a company actually feels.

This is where the real difficulty lies. On paper, Portugal’s collective redress framework appears among Europe’s most generous. In practice, however, it is designed not to work. There are almost no incentives to bring a case; proceedings take far too long; and associations, investment funds and professionals face profound legal uncertainty. The right is granted with one hand, while the machinery needed to exercise it is quietly jammed with the other. A remedy that does not move is not a remedy at all, merely a scenario.

So, when we raise a glass to social media during a live stream with our favourite influencer, we should be honest about what we are toasting. We are not celebrating a lawless frontier, nor one burdened by too much law. The law is there, and much of it is good. We are celebrating a system that has written rules nobody can enforce. We celebrate social media; in doing so, we celebrate institutional mediocrity.