This article uses innovative digital research methods to evaluate the moderation of images that depict women’s bodies on Instagram against the Western legal ideal of the rule of law. Specifically, this article focuses on the contested rule of law values of formal equality, certainty, reason giving, transparency, participation and accountability. Female forms are the focal point for our investigation due to widespread concerns that the platform is arbitrarily removing some images of women’s bodies and, possibly, privileging certain body types. After examining whether 4944 like images depicting (a) Underweight, (b) Mid-Range and (c) Overweight women’s bodies were moderated alike, we identify an overall trend of inconsistent moderation. Our results show that up to 22 per cent of images are potentially false positives – images that do not appear to violate Instagram’s content policies and were removed. The platform’s opaque moderation processes, however, make it impossible to identify whether images were removed by Instagram or by the user. This article concludes that the apparent lack of rule of law values in the platform’s moderation processes, and Instagram’s largely unfettered power to moderate content, are significant normative concerns which pose an ongoing risk of arbitrariness for women and users more broadly. We propose ways that platforms can improve transparency, and advocate for the continued development of digital methods for empirical, legal analysis of platform governance. These improvements are crucial to help identify arbitrariness where it exists and to allay the suspicions and fears of users where it does not.
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(2019) 42(2) UNSWLJ 557: https://doi.org/10.53637/IPMC9544