Regulating Behaviour on Data Platforms: The Online Restraining Order as an Administrative Measure

Data platforms assert great influence over data. The personal data of their users is used to fund the service through the sale of personalized advertisements. Though, more important for society, these platforms exert great power over the dissemination of available information. Data platforms are increasingly used to communicate with other (like-minded) people. It is a platform where information and opinions are shared. In that sense, platforms are not only the guardians of users’ personal data, but also the gatekeepers of (public) information.
Access to data platforms is traditionally governed by the platforms themselves. Platforms can dictate who gets access, which content can be shared, and the grounds for a (temporary) expulsion from the platform. Despite the discussion on whether data platforms should be regulated as public utilities, or whether the operators must obey norms of fundamental rights as de facto public spheres, the direct influence of states on access to data platforms has been limited. Recently, a (political) discussion has arisen in the Netherlands as to what extent administrative bodies should be able to impose administrative measures in online spaces. In the Netherlands, access to physical places can be limited by administrative measures imposed by a municipality’s mayor. Could mayors similarly impose online restraining orders, limiting a person’s access to a data platform?
This article discusses online restraining orders as an administrative measure. After a short introduction to the Dutch online restraining order, the article first discusses the traditional private-governance framework to access a data platform. In this first part, the normative online order set by platforms through their terms of service is discussed. After this contextualisation, the legal grounds to impose administrative measures under Dutch law are described, followed by a discussion on the online applicability of these powers, and a discussion on the transposability of physical legislation to online spaces. Lastly, the article concludes with a reflection on the future of online restraining orders.