Institutionalising platform-led content moderation: a critical view on the EU’s market-driven approach to regulating illegal online content

Abstract In the digital age, the proliferation of illegal content online remains a significant public concern for which no ideal solution has yet been found. In recent years, the European Union (EU) has developed a complex legal framework that relies on social media companies to implement both EU and Member State laws in addressing the issue. This paper examines this development through the lens of regulation studies, showing how the EU is mandating social media companies to act as regulatory intermediaries. On this basis, it argues that the EU is institutionalising the content moderation processes created by these companies, effectively integrating them into the legal enforcement landscape. The paper highlights how this institutionalisation raises important questions about the tension between the self-interest of private actors and the public interest in combating illegal content online. It further underlines how, by adopting such a legal framework, the EU continues to pursue governance frameworks grounded in market-based principles. From this perspective, the paper makes two main contributions to the literature on digital law in the EU. First, at a conceptual level, it demonstrates the value of regulation studies as a lens for interpreting recent legal developments. Second, from a critical standpoint, it questions the EU’s legal framework in light of the tension between companies’ self-interest and their intermediation mandate, as well as the persistence of market-based governance approaches within the EU. The paper also contributes to the literature on regulation studies by proposing a new case study of regulatory intermediation in the digital context.