Thursday, December 7, 2023
Michelle Miao (The Chinese University of Hong Kong, Faculty of Law) has posted Platform Regulation through Sanctions (Washington International Law Journal (2023 Forthcoming)) on SSRN. Here is the abstract:
This article, theoretically and empirically, articulates the rising role of criminal law as a regulatory tool of China’s digital platform economy. This unique Chinese model of digital platform governance is described as platform regulation through sanctions. Based on a comprehensive survey of a wide range of digital platforms, e.g., financial fundraising platforms, e-commerce, taxi-hailing and video-sharing platforms, and criminal cases involving such platforms, I reveal the logic of regulation through sanctions: it shifts state regulatory burden and accountability, redistributes risks and responsibility, and enhances political legitimacy. Compared with the direct regulatory model adopted by European countries and the indirect, self-regulatory model employed in the U.S., China’s hybridity of platform governance saw the merger between direct intervention and indirect control through threats and sanctions. The centrality of criminal law as a regulatory device in the governance of platform-derived risks has been achieved through the imposition of three types of positive duties: the duty to review, the duty to manage, and the duty to protect. This legal and regulatory ecology exerts pressure on digital platforms but also allows its power to extend upward to serve public management functions as well as downward to modify individual behavior.