CELE's Activities in Europe and the State of the Debate on the DSA

CELE, represented by its researcher Nicolás Zara, participated during in the European Rights & Risks: Stakeholder Engagement Forumduring the last week of June. Additionally, in July, Nicolás participated in the 2024 edition of the Summer Course on European Platform Regulation organized by the DSA Observatory of the Institute for Information Law (IViR) from Law School at the University of Amsterdam.

Rights and Risks

On June 26 and 27, 2024, the European Rights & Risks: Stakeholder Engagement Forum (hereinafter, “the Forum”), took place in the city of Brussels, co-organized by the Global Network Initiative (GNI) and the Digital Trust and Safety Partnership (DTSP). The Forum brought together representatives from major online platforms, civil society, and academia from around the world to reflect and share perspectives on the system of identifying, analyzing, evaluating, and mitigating systemic risks that arise from articles 34 and 35 of the European Union Digital Services Act (DSA). The Forum was held under the Chatham House Rule and resumed the conversations started in June of last year at the workshop “Implementing risk assessments under the Digital Services Act”, also organized by GNI and DTSP, the conclusions of which can be read in this report.

The panels and workshops that comprised the Forum focused on the processes for conducting systemic risk analyses, risk mitigation measures in crisis contexts, the boundaries between harm and illegal content, meaningful engagement under Recital 90 of the DSA, and risk mitigation in conflict scenarios.

Nicolás joined the panel “Reflecting on the risks and rights landscape in Europe and around the world”, which presented some critical approaches to the very concept of systemic risks and the role of freedom of expression under the risk framework of the DSA. The panel also questioned the idea of exporting platform regulation regimes based on risks to legal traditions different from the European one.

A European Perspective on Platform Regulation 

During the week of July 1 to 5, Nicolás participated in the second edition of the Summer Course on European Platform Regulation. The course took place at the School of Law of the University of Amsterdam and was organized and taught by the DSA Observatory of the Institute for Information Law (IViR) of that university.

The European platform regulation ecosystem was thoroughly examined from various angles, such as intermediary liability, the systemic risk approach to content moderation, transparency obligations, access to data for researchers, platforms' responsibilities towards consumer rights, and the commercial regulation of intermediary service providers. The cohort was composed of researchers, civil society representatives, independent lawyers, employees of companies that provide intermediary internet services, and members of the teams responsible for implementing the DSA at the local level (Digital Services Coordinators under Article 49 of the DSA).

Some Observations on the Current State of the Debate

The new generation of internet platform regulations, which goes beyond the old intermediary liability laws to impose a series of positive duties on companies, is a rapidly growing trend. The DSA is a pioneer and model for legislators around the world seeking to regulate the digital ecosystem. Hence the high expectations for its success, the enormous mobilization of civil society around it, and the extraordinary academic interest it generates.

In the search for new ways to deal with the social effects of the speed, volume and permanence of content circulating on the internet beyond the limited individual remedies available in previously existing legislation, the DSA obliges providers of very large online platforms (VLOPs) and providers of very large online search engines (VLOSEs) to “detect, analyze and evaluate” any systemic risk arising from the design, operation or use made of its services, and to take “reasonable, proportionate and effective” measures to mitigate those risks. Given the absence of a legal definition of “systemic risk” in the text of the regulation –as we warn here-, the ambiguity of some of the risks contained in the wording of Article 34 of the law, and the lack of delegated legislation to fill these gaps, many of the debates at the Forum in Brussels revolved around the meaning of this significant concept.

Five months after the obligations for VLOPs and VLOSEs came into effect, the concept of “systemic risk” —fundamental, as we have seen, in the new content moderation scheme for major platforms in Europe —remains an empty signifier. While the platforms prepare their second risk analysis report, the silence of the European Commission on this matter means that no one knows, for sure what such a report should look like. The publication of the first reports on risk analysis and mitigation is expected in November of this year, according to Article 42, paragraph 4, of the DSA. It is important to remember that the “risk mitigation measures” play a crucial role in platforms' content moderation policies. Although the European Commission does not provide certainty regarding the meaning of systemic risks or the appropriate measures to mitigate them, the law imposes severe economic penalties for non-compliance. This puts platforms in a very compromised position, potentially leading them to remove more content than they would prefer out of fear of being found in violation of the regulation and sanctioned. 

For that reason, and following someoverreachanderratic actionsby the officials responsible for enforcing the DSA, there is a growing sense of uncertainty about its chances of success, while concerns arise about the possibility that,in the wrong hands, it could be used tosilence dissenting voices. This contrasts with the atmosphere ofoptimism and healthy uncertaintythat prevailed across the Atlantic just a few months ago.

Finally, it is worth noting that a certain consensus is beginning to build around the idea of ​​a “Brussels effect” concerning the DSA: the notion that it will be “exported” to other regions— either through the mere “copying” of its provisions in national laws or international instruments or through the actions of the trust and safety of the platforms—is gaining strength. The European discussion is becoming less European and more international, and it will be crucial to remain vigilant to these developments from the Global South.