The protection of freedom of expression on social media: a comparative jurisprudential perspective
By: Jorge Leyva
Freedom of expression in digital environments does not constitute an autonomous or diminished category of rights. It is the exercise of a classical freedom within a different technical space, one in which effects are amplified but the structural function remains unchanged. The recurring error lies in treating digital platforms as an exceptional sphere where traditional standards may be relaxed without legal cost.
Interventions affecting content on social media produce immediate effects on public debate. The removal of posts, suspension of accounts or algorithmic reduction of visibility do not operate as neutral acts of private moderation, but as material restrictions on the circulation of ideas. When such measures affect specific types of speech, actors or viewpoints in a systematic manner, they alter the public sphere with an intensity comparable to indirect censorship.
Comparative jurisprudence has increasingly recognised that the formal classification of the intervening actor does not exhaust the analysis. Even where the restriction is carried out by a private entity, legal scrutiny is triggered when there are elements of structural control over public discourse, regulatory incentives attributable to the state or effects equivalent to a public limitation of expression. The focus is not on platform ownership, but on the nature and predictability of the impact produced.
From a legal standpoint, the central issue is not the existence of terms of service, but the proportionality and control of their application. When moderation criteria are vague, opaque or selectively enforced, restrictions cease to be foreseeable and become legally problematic. The absence of individualised reasoning and effective avenues of challenge transforms technical decisions into materially discretionary acts.
The displacement of judicial oversight by private norms generates a structural deficit of guarantees. Decisions concerning which forms of expression remain visible and which are excluded are adopted through procedures that lack standards of adversarial process, evidentiary assessment and independent review. This model does not eliminate legal responsibility. It disperses it, making attribution more difficult without neutralising its effects.
More consistent jurisprudence has introduced a functional criterion. Where a digital platform operates as essential infrastructure for public debate, restrictions on expression must be subject to heightened requirements of legality, reasoning and proportionality. This does not impose a public-law regime on private actors. It recognises that certain effects cannot be produced without legal control, irrespective of the technical channel through which they occur.
The legal consequence is identifiable. The protection of freedom of expression on social media cannot depend on the good faith of platform operators or on declaratory self-regulation. It requires normative frameworks and control mechanisms capable of intervening when moderation decisions produce structural effects on public debate. Treating such decisions as mere contractual acts does not preserve freedom of expression. It subjects it to power exercised without equivalent legal standards.