Social Media Day, Mashable and the social media enforcement problem

Social Media Day and what we gained from social media

Social Media Day, a date created in 2010 by Mashable to mark how social networks can bring people closer together, is a handy excuse to take stock. Back then, the mood was peak tech optimism. Sixteen years on, it is worth doing the maths - and doing it properly.

To start with, there is genuinely a great deal worth recognising. Social media gave a teenager in a small town the same stage as a television broadcaster. It let families spread across three countries share an ordinary Tuesday. It also handed a small business in Lisbon a shop window in São Paulo and Stockholm that no advertising budget could ever have purchased.

It has also generated jobs that did not exist twenty years ago: content creators, influencers, streamers, community managers, and a whole ecosystem of people working across video, audio, design, newsletters, live shopping, and even the "knowledge entrepreneur" selling online courses and mentoring. Alongside that came new cultural formats and habits: the meme, the vertical video, digital communities organised around shared aesthetics and interests, fresh ways to mobilise civically, and an unprecedented global circulation of culture. Connection, culture, commerce - all at a scale and cost that, a generation ago, belonged to science fiction. These are not trivial gains, and the instinct to sneer at platforms often overlooks them.

What went wrong: addictive design, children and bots

And yet there is also plenty to criticise. The list of charges is just as real. Feeds engineered to be hard to put down. Interfaces designed to nudge, trap and wear users out - the so-called dark patterns. Children sitting three taps away from material no one would ever hand them on paper. And crowds that, when you look closely, turn out to be bots.

The next move in many discussions is to ask whether the good outweighs the bad. Legally, that is the wrong question. A simple cost–benefit ledger can end up pricing almost any harm, provided the surrounding benefit is large enough, and the difficulty of measuring both benefit and harm kills the analysis. Social media platforms benefit from that.

A lawyer’s question is sharper - and it is exactly what proportionality analysis is for: are these (social) costs necessary to achieve the benefits? If the answer is “no”, then the harm fails at the necessity stage. You do not need dark patterns to connect people. You do not need addictive design to entertain them. You do not need to hold on to a twelve-year-old in order to sell advertising. Social networks would probably make less money. But profit earned unfairly is not defensible, and losing it is not something we should worry about.

Social media regulation in Europe and Portugal: rules without enforcement

So do we need fresh European or Portuguese legislation to deal with this? Not really - because the urge to legislate is already in motion. In Portugal’s parliament (the Assembly of the Republic), an initiative is under way to raise the age of digital consent from 13 to 16, with age verification. The European Union is also considering adding further provisions in the future Digital Fairness Act. But that reflex misreads the problem. We are not short of rules.

Worried about addictive design? The tools are already there. The Digital Services Act prohibits manipulative interfaces, regulates recommendation systems based on profiling, requires an option for a feed that is not profile-based, and sets out specific duties towards minors. Behind it sits the regime on unfair commercial practices, which for two decades has policed the exploitation of consumers.

Concerned about minors? They are already supposed to be kept out. If a child is under 13, they cannot validly consent to the processing of data on which these services depend. Platforms themselves bar access for under-14s, but they do not enforce it. We could raise the threshold to 16 (and perhaps we should) - but what about enforcing the bans that already apply?

Worried about bots? By the same logic, each account is presumed to correspond to a real person, and bots are not that. In substance, the prohibition is largely already there; what is missing is detection - and consequences.

So the issue is not that the law is lacking. It is institutional, and it is important to be blunt: under-enforcement happens on two fronts, public and private. On the public side, enforcement is slow, underfunded and politically exposed: the European Commission, within its remit, and the Directorate-General for Consumers, within its own, cannot open and close all the investigations they should. On the private side should be consumers and the organisations that represent them, bringing collective actions for injunctions and compensation that turn a duty on paper into a cost a company actually feels.

That is where the real problem sits. Portugal’s collective redress framework looks, on paper, among the most generous in Europe. In practice, it is built not to work. There are barely any incentives to bring a case; proceedings drag on for ages; and there is deep legal uncertainty for associations, investment funds and professionals. The right is granted with one hand, while the machinery that could deliver it is quietly jammed with the other. A remedy that does not move is not a remedy - it is merely a set.

So, when we raise a glass to social media in 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 with too much law. The law exists, and much of it is good. What we are celebrating is a system that wrote rules no one can enforce. We celebrate social media - and, in doing so, we celebrate institutional mediocrity.