The legal framework governing online speech relies on a distinction between the public and private sphere. A direct consequence of this distinction is the bifurcation between user and citizen. While the former is largely governed by private contractual norms—like a platform’s terms of service—the latter is traditionally governed by public law norms. Governments, however, increasingly exploit this distinction and treat citizens as users: by engaging with the interpretation of private companies’ self-regulation policies, governments are circumventing public law norms and fostering a new system of informal governance.
This article suggests the term informal governance to capture the nonbinding and opaque interplay between state actors and private content intermediaries, taking place in the shadow of the law and affecting online content moderation. Informal governance rests on the border of the public/private legal infrastructure and facilitates the circumvention of public law constraints. A distinctive feature of informal governance involves state institutions that subject their action to a private governance apparatus of a market player and engage with it to achieve their interests. Whereas informal governance is a conceptual framework, Internet Referral Units (IRUs) are its device in the content moderation enterprise.
