Enthusiasm, Anticipation and Uncertainty: CELE's Participation in the DSA and Platform Regulation Conference in the Netherlands
Since February 17, 2024, all provisions of the European Union Digital Services Act (DSA) have been in force. The DSA is the European directive that regulates online intermediaries and platforms—social media, app stores, online shopping platforms, etc.—and imposes a series of obligations on them, to create a safer digital space where the fundamental rights of all users are protected. This groundbreaking regulation proposes a paradigm shift from the prevailing model up to now, and it is a source of both great hopes and fears.
On February 15 and 16, the DSA and Platform Regulation Conferencewas held at the Amsterdam Law School, Netherlands. The conference was co-organized by the DSA Observatory of the Institute for Information Law (IViR) from the University of Amsterdam, the Digital Transformation of Decision-making Initiative of the Amsterdam Law School and the Digital Legal Lab of the universities of Amsterdam, Tilburg, Radboud, and Maastricht. It was attended by academics, regulators, civil society representatives, and other experts in platform regulation. Nicolás Zara, a researcher from CELE, participated and presented a work in progress about the challenges to freedom of expression posed by the volume, speed and permanence of content circulating on the Internet.
Getting the DSA up and running
Most of the more than 40 papers presented at the Conference dealt with the challenges in implementing the newest aspects of the DSA, such as the analysis of systemic risks and the mitigation measures that the largest platforms and search engines must undertake (articles 34 and 35 of the DSA), the annual audit system and the transparency mandates. These are central aspects of the regulation and have a high potential to change business practices and produce systemic effects in the global digital communications ecosystem.
In this context, enforcing the DSA provisions was a focal point of attention. The DSA proposes a complex system that divides the enforcement oversight between two levels: the European Commission on one side and the national authorities of the member states of the Union (the so-called “Digital Services Coordinators”) on the other. Some platforms—especially identified by their size—will have to undergo annual audits to ensure compliance with their obligations. Successful implementation will require consistency and coordination between national authorities and the Commission, and even among the auditors themselves.
The atmosphere of the meeting was one of collaboration and exchange within an ecosystem with two common objectives:understanding the various aspects of the DSA and “making it work”. The predominant role of academia in this framework and the centrality of access to data for research activities were recurring themes. This last point has been a priority for CELE over the last year. In fact, CELE was one of the few organizations from the Global South present at the Conference.
DSA, zero hour: uncertainty about the near future
The DSA is a very ambitious regulatory scheme that encompasses multiple aspects of the existence of Internet intermediary platforms. During the Conference, various panelists gave very diverse responses to the question of what it would mean to them if the DSA “succeeded.” Its implementation offers a challenging path forward. It is expected that the impact of the regulation will not be immediate. The very dynamics of its execution are conceived more as a “regulatory dialogue” over time than a system that clearly delineates standards and starting and ending points. The implementation of the DSA, regulators repeat like a mantra, is not a sprint but a marathon.
No one seems to know what the Internet will look like in the European Union after two or five years of the DSA being in effect. It is not certain that all the member states of the Union have the technical capacity and political determination that the European Commission seems to have to carry out the DSA project. It is also not possible to say that the initial vigor of the Commission will be sustained over time. With European Parliament elections scheduled for June this year, the landscape could soon change.
There are risks associated with each of the most important elements of the DSA. The system of risk analysis and mitigation can be used to silence perfectly legal and publicly relevant content, a concern that has already been raised by some organizations. It is not clear whether this “procedural turn” of the DSA, which looks at content moderation in a systemic manner and focuses on company processes, is compatible with international standards on freedom of expression. The new transparency obligations for companies risk being used by platforms for “transparency washing”: revealing parts of how they operate and some internal processes to legitimize them without other, perhaps central, aspects of their business model being questioned.
With a text that is surprising for its length—and, in some passages, for its vagueness—, extremely ambitious objectives, a complex implementation segmented at different levels, doubts regarding substantive aspects and provisions yet to be regulated, the DSA's ability to make the Internet a safer place that respects human rights remains an unknown. Its chances of success and meeting the colossal expectations placed on it depend on the coordinated action of an ecosystem of agents and factors that is still in formation. The most important thing is yet to come.
