Digital Services Act: Ensuring a trustworthy and safe online environment while allowing freedom of expression
*Photo by Markus Winkler on Unsplash
European lawmakers will be grappling with a challenge this year: how to strike the right balance between content moderation combating illegal content, while supporting freedom of expression and pluralism of opinions? The European Union’s new Digital Services Act should adopt a common and proportionate approach for digital intermediaries, going after bad actors and illegal content rather than the size of online platforms.
In mid-December, the European Commission published its proposal for a Digital Services Act (DSA). The new rules will define the framework within which digital services operate and moderate content in the European Union (EU) for years to come. It is an opportunity to create a better functioning EU digital single market, provide clarity on everyone’s responsibilities, and safeguard online rights.
Compared to its predecessor, the e-Commerce Directive, the DSA proposes important improvements to tackling illegal content. This includes EU-wide harmonisation of the ‘notice-and-action’ mechanism, the possibility for digital intermediaries to carry out voluntary ‘own-initiative’ investigations, and an improved level-playing field as all digital intermediaries targeting EU consumers are subject to the same rules. The DSA also keeps a key principle of the e-Commerce Directive by maintaining the ban on general monitoring obligations for digital intermediary services.
The EU’s overall objectives are certainly well-intended. However, many concerns remain, for instance:
The DSA should tackle bad players and behaviours regardless of the platform’s size and country of origin. Having a specific regime for “very large online platforms” with additional obligations leaves the door open for rogue players to simply move to smaller digital service providers that are subject to a lighter regime. Moreover, having a threshold might disencourage digital services with pan-EU ambitions from scaling up, as the burden faced would be too heavy. Proportionate rules are needed, but the suggested approach wouldn’t necessarily make the Internet safer nor protect EU consumers.
To prevent legal uncertainty, the DSA should have a clear scope focusing on illegal content, products and services. The rules should be horizontal and principle-based, and could in a second phase be complemented with more targeted measures (legislative and non-legislative) to tackle specific concerns.
The fundamental ‘country of origin’ principle set by the e-Commerce Directive is challenged. The DSA proposal allows the 27 national authorities to issue an ‘order to act’ directly to an intermediary service, without going through the ‘Digital Service Coordinator’ from the country where the digital provider is established. Such an approach could be very challenging for micro, small and medium-sized digital platforms which represent 92% of Europe’s online platforms. Undermining the ‘country of origin’ principle would fragment the EU Single Market and create more red tape for national businesses trying to become European businesses.
A European framework is essential to prevent national interpretations causing fragmentation of the EU Single Market. Despite the EU DSA proposal, several EU member states have develop parallel initiatives. For instance, Germany with its Network Enforcement Act (NetzDG) and its suggested update, France with its amendment to the draft legislation on political separatism, and Poland with its draft law making it difficult for social media giants to block Polish accounts if the content does not violate Polish law. While European capitals’ concerns are understandable, action at the EU level would be the most relevant and effective, as digital intermediaries often operate cross-border.
The DSA proposal seeks more transparency from digital intermediaries. While well-intended, EU policymakers should find the appropriate equilibrium between transparency, the protection against rogue players’ attempts to game the system, and the protection of operators’ trade secrets. Any new requirement must be achievable, proportionate to known risks and provide real added value.
Finally, the success of the DSA will also depend on its enforcement. The new obligations will require substantial changes from digital intermediaries. To ensure a well-informed, planned and effective execution, the implementation period should be extended, as there is a limit to what the industry can do in the suggested three-month period.
EU policymakers have the delicate task of ensuring that Europeans can continue to enjoy all the economic and social benefits of digital services. Hopefully, policymakers will work with all the various stakeholders, including industry and civil society, to develop a well-functioning and future-proof EU legislation.