Into the Quagmire: Social Media as Regulators and the Limits of Judicial Review

Social media platforms (SMPs) have become an entrenched medium of public communication. Despite their increasing restriction of speech and expression, SMPs are currently beyond the scope of judicial review. This article questions whether that can continue to be justified given SMPs’ increasing performance of regulatory functions that can non-radically be accommodated within the Datafin line of authority. It charts a path through the existing jurisprudence while also highlighting likely obstacles to this extension of judicial review’s scope. While focusing on English law, the analysis draws on comparative experiences in Scotland, Australia and New Zealand. It is concluded that the prospect of extending the scope of review to include SMPs is evocative of the existential crisis increasingly faced by judicial review: how to maintain utility and relevance as the orthodox public/private distinction comes under mounting strain, while retaining purpose, focus and doctrinal manageability.