A media exemption in the DSA is a recipe for unintended consequences
The Digital Services Act (DSA) was presented with a great deal of fanfare nearly a year ago and it has gone through an intense legislative process since then. It was one of the centerpieces of Commission President von der Leyen’s legislative agenda, and much of the discussion has revolved around how exactly to craft the laws to achieve the Commission’s stated goal of making “Europe fit for the Digital Age”.
The DSA was explicitly described as “a horizontal framework for all categories of content, products, services and activities on intermediary services”. However, some politicians have seized on the DSA to regulate a wide range of additional topics, going from targeted advertising, marketplaces to prescribing how digital services should use and exchange data. In the cacophony of voices seeking to influence policymakers, some sectors and companies have sought to plead for exclusive exemptions or exclusions from the DSA.
Amongst one of the louder voices in recent times has been the media sector, who has lobbied for an exemption from the content moderation provisions in the DSA. Under these proposals, online platforms would be banned from taking measures that violate their terms and conditions, including harmful or even illegal content, if this was posted by a “publisher” or “editorial content providers”. While their intentions may be sincere, exempting the media sector from the DSA is problematic on a number of fronts, with even Vice-President of the Commission Věra Jourová recognising the proposal as one of those “good intentions leading to hell”.
Another major issue with a media exemption to the DSA is the definition of “media”, “publisher” or “editorial content provider”. As it stands, we do not have clear definitions of these three concepts in Europe. There have been some suggestions of using the EU’s Copyright Directive (EUCD) as a guide, but this would be difficult due to its extremely broad nature. While we can all agree that freedom of the press is critical, we now operate in an environment where anybody with a smartphone can declare themselves a “journalist” or “publisher”.
Of course there is a reasonable argument for such a definition when looking to protect the works of publishers. The issue arises when we begin to discuss the moderation of content and the potential need to remove it. With such a broad definition, there is ample opportunity for bad actors to exploit an exemption, using the guise of “citizen journalism” to publish dangerous content under the protective banner of “publisher”. A media exemption would prevent platforms from keeping users safe, even in cases of illegal content violating their terms and conditions of other existing laws, such as the EU Regulation for Terrorist Content Online.
In addition, a number of platforms are taking voluntary actions as a part of the EU Code of Practice on Disinformation – and media exemptions would make this important self-regulatory instrument toothless. One should not forget that recent COVID-19 misinformation campaigns or election disinformation attempts often came from publishers with editorial guidelines.
In effect, a media exemption would amount to a “must-carry” obligation on digital intermediaries. This would be similar to requiring certain television or radio channels to be broadcast over certain networks, despite an added-risk of violent content or disinformation. This could have extremely damaging implications that could be exploited by rogue actors to spread disinformation under the pretense of sharing factual news.
Some publishers are also concerned about “overblocking”. This fails to take into account that there are solutions available that do not prescribe broad exemptions. Already some platforms have incorporated exemptions focused on specific content backed up by robust appeal processes. To answer their concerns, EU policymakers should create exemptions for certain content, as opposed to exemptions for some stakeholders.
The DSA should protect freedom of speech and the important role journalism plays in our democracies. However, to protect free speech, exceptions should apply to content, not a discreet list of creators. Platforms should consider removal requests in the context of their policies and exceptions, such as those with educational, research or documentary value, irrespective of whether the author is a news publisher or not.
Finally, many other governments around the world are eagerly anticipating how the EU implements its new content moderation rules. In other regions, where democratic norms are weak, a blanket media exemption and effective obligation in the DSA would be an invitation for some governments to introduce similar measures which would undermine fundamental rights.
The DSA is a welcome attempt to rebalance how digital services operate in Europe. However, granting blanket exemptions for the media sector would defeat the DSA’s number one objective of ensuring the safety of users online. Free speech must be protected with exceptions for some specific content, instead of creating sector-specific exemptions.
