CELE's Participation in the Fifth Edition of the Civil Society Roundtable Series in Brussels: Civil Society at the Forefront 

On April 17, 2024, two months had passed since the full implementation of the European Union Digital Services Law (DSA). On that date, a new edition of the Civil Society Roundtable Series was held in the city of Brussels, co-organized by the European division of the Center for Democracy and Technology (CDT) and the Open Government Partnership.

This in-person meeting, celebrating its fifth edition, gathers representatives of government institutions, academia, and civil society every six months to collaborate within the framework of an open dialogue among multiple stakeholders. This edition of the event served as an opportunity for the public debut of the DSA Civil Society Coordination Group, a coalition of more than 35 civil society and academic organizations that CELE recently joined. The group aims to influence the effective implementation of the DSA in a manner that respects human rights.

The meeting featured a high-level panel composed of Bernardo Herman (Belgian Institute of Postal Services and Telecommunications), Marco Giorello (Directorate General for Communication Networks, Content and Technologies of the European Commission, CNECT), Tim Hughes (Open Government Partnership ) and Asha Allen (Centre for Democracy and Technology). The speakers highlighted the centrality of openness and transparency in the discussion and enactment of the DSA, as well as the need for specialized knowledge from civil society for its successful implementation and addressing unresolved challenging questions. There was also discussion about the importance of formal and institutionalized channels for relations between governments and civil society, along with the need for appropriate funding to support the increased prominence of this sector.

Next, the participants split into five parallel work groups, operating under the Chatham House rule. In these groups, regulators and other representatives from national governments, the European Union, academia, and civil society discussed collaboratively the main questions and implementation challenges presented by the Digital Services Act:

  • Group 1: DSA as a global standard: the extra-territorial impacts of the DSA & EU Digital Foreign Policy
  • Group 2: Ensuring effective DSA enforcement: Cooperation and coordination between national regulators, CSOs and the European Commission
  • Group 3: Assessing and mitigating systemic risks: Exploring general approaches, recommender systems and elections;
  • Group 4: Vetting key stakeholders: Trusted Flaggers and Researchers
  • Group 5: Monitoring compliance: Establishing mechanisms & evidence gathering

Protecting rights or mitigating risks

CELE was represented by Nicolás Zara, a researcher who participated in working group number 3, focused on the analysis of systemic risks and the mitigation measures that the largest platforms and search engines must undertake (Arts. 34 and 35 of the DSA). The discussion revolved around the problems caused by the lack of a legal definition of “systemic risk” and the need to establish criteria for its identification, the absence of guidelines from the European Commission for conducting and evaluating risk analyses, and the long-term consequences of these gaps.

While some members of the working group argued that these gaps are a strength in that they allow for greater flexibility in law enforcement and the emergence of innovative solutions in risk definition and mitigation, others expressed concern and identified them as a legislative flaw. For this second position, which we share, the vagueness in the wording of the law (as noted here) can create uncertainty for those subject to it and grant undue discretion to those responsible for its enforcement, a situation that has indeed been highlighted on several occasions. The lack of a definition of what constitutes a systemic risk is not the only problem; some of the systemic risks identified in Article 34 of the DSA are expressed too vaguely. This is the case with those defined in subsections c) (“any actual or foreseeable negative effect on civic discourse and electoral processes, as well as on public security”) and d) (“any actual or foreseeable negative effect in relation to gender-based violence, public health protection and minors, and serious negative consequences for the physical and mental well-being of individuals"). Furthermore, we believe that the European legislator's choice to adopt a risk-based approach to platform regulation, rather than a human rights-based approach, reflects a misplaced set of priorities that may not be benign.

CELE and the DSA

CELE was one of the few organizations from the Global South present at the event, and the only one from Latin America. This was not a coincidence. We perceive the DSA as a Copernican shift in platform regulation. The significant concentration of internet control in the hands of a few platforms in recent years and the deep distrust that weighs on them by certain sectors of the population have challenged the classic model of intermediary immunity regarding third-party content. A new model, which some have placed within the paradigm of “meta regulation”, is beginning to assert itself. This new regime acknowledges that, given the volume of available information and the speed at which it circulates, it is impossible for all content moderation decisions, which are currently mostly automated, to be correct. The focus is no longer on the outcomes of the specific content moderation instances, where errors are tolerated. The emphasis is now on the processes: platform immunity for third-party content is conditioned on their compliance with a series of legally imposed due diligence obligations. The European Union's Digital Services Act and the United Kingdom's Online Safety Act are examples of regulations that impose such duty of care obligations.

Given this situation, we believe that the conversation about platform regulation in general and content governance, in particular, will increasingly focus on these terms and less on the old regime of complete intermediary immunity, which is now in crisis. Therefore, we seek to participate in the early stages of this new language taking shape, which will eventually inform global industry practices globally in terms ofTrust and Safety. Following this logic, we participated in theDSA and Platform Regulation Conferencein Amsterdam in February and made contributions to the European Commission's consultations ontransparency obligations andrisk mitigation in electoral processes, as well as to OFCOM's consultation onillegal online content.

The speed of change and the emergence of new regulatory paradigms pose significant challenges that require us to redouble our efforts. At CELE we believe that they also present new opportunities to shape new conversations and influence new spaces globally. Participation in horizontal and constructive discussion environments like this is the most suitable vehicle to do so.