Threatening dynamics on Internet governance: the case of Europe and the Digital Services Act (DSA)
As part of their research on the topic, CELE has characterized a threat of regulation as “any kind of public or private utterance or action by public officials who hold regulatory power over others in which they express, suggest, or imply, clearly or veiledly, “their desire to see their subject's conduct move in a particular direction.”
In the United States, this conduct is usually called jawboning. As described by Ramiro Álvarez Ugarte in a recent piece, this is an extremely complex area of law, in part because assessing when public officials cross such a legal line requires a complex understanding of both the scope and instruments of the existing legal framework, as well as the actual intention of obtaining a specific result which is not necessarily pre-determined or explicitly pursued by the law.
In the European Union (EU), the DSA establishes a series of fundamental rules and principles regarding how intermediaries participate in the publication and distribution of online content. It especially focuses on content hosting and sharing platforms, such as Facebook, TikTok, Twitter, and YouTube. It also incorporates new important rights for users and obligations for service providers (particularly the so-called very large online platforms: VLOPs) in areas such as terms and conditions, transparency requirements, statements of reasons, advertising, protection of minors, complaint-handling systems, and out-of-court dispute settlements among many others.
The DSA may and, in some aspects, has already become a regulatory area where the possible exertion of informal pressures deserves to be properly studied and analyzed. Firstly, because the DSA explores unchartered regulatory territories on the basis, as it will be shown, of general legal principles and provisions that need to be primarily enforced by private actors (intermediaries). Secondly, because the complexity of the enforcement and monitoring system of the DSA requires the combined action of national regulators for each member state and the European Commission when it comes to the legal obligations applicable to big tech platforms that provide services across all European states and globally . This choice by the legislator (justified by the possible lack of capacity of national regulators to deal with such actors properly) has opened the door to concerns about the political profile of the Commission as well as the adoption of monitoring techniques closer to political statements than administrative procedures with safeguards and guarantees. Recent public acts by the so-far commissioner in charge of the DSA implementation have in fact confirmed such concerns.
This post will now examine some of the provisions included in the DSA which may be used by relevant authorities to impose on intermediaries the adoption of decisions affecting users' content in non-properly accountable ways.
DSA areas for informal regulatory pressures
The DSA incorporates new provisions to facilitate the adoption of diligent measures against illegal content posted by platforms' users. According to article 9, providers of intermediary services must act against illegal content upon the receipt of an order issued by the relevant national judicial or administrative authorities. According to the mentioned article, the territorial scope of that order, based on the applicable rules of Union and national law, and, where relevant, general principles of international law, is limited to what is strictly necessary to achieve its objective. This relative legal ambiguity may however trigger the issuance of orders by specific national authorities based on local legislation addressing global platforms (VLOPs in particular) with the aim of pushing for content takedowns with extraterritorial effects. Since content distributed by this type of platforms is generally offered to all their users globally, platforms may be tempted to err on the side of caution and avoid further issues with the incumbent authorities, or with those from different jurisdictions, for example by establishing general filters without proper consideration of a potential impact on the right to freedom of expression. This risk was already highlighted, even before the DSA, in light of the problematic elements included in the decision from the EU Court of Justice in the case of Glawischnig-Piesczek v. Facebook Ireland, as pointed out by some experts.
Article 13 establishes that intermediaries that do not have an establishment in the Union shall designate a legal or natural person to act as their legal representative in this territory. This provision also emphasizes that “It shall be possible for the designated legal representative to be held liable for non-compliance with obligations under this Regulation, without prejudice to the liability and legal actions that could be initiated against the provider of intermediary services.” The need for at least a legal representative for providers that operate in the EU may seem a reasonable requirement, particularly considering the different duties and responsibilities that such companies are subject to in this territory. However, it is also obvious that the possibility of specific legal or natural persons present in a certain state being held liable for infringements committed by global online platforms has been criticized, in different contexts, as a tool that may favor the uncontested adoption of restrictive content measures even in cases where they may not be considered legally founded by the affected providers.
Article 14 establishes that when enforcing their terms and conditions intermediaries shall act in a diligent, objective, and proportionate manner, particularly “with due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter.” some authors have, however, noted that this needs to be seen as a framework provision that creates a risk of overreliance on fundamental rights. A vague reference to human rights as a reference framework for private content moderation may open the door to the adoption of regulatory constraints that, precisely in the name of human rights, may guide or predetermine content moderation decisions in a specific direction. It is important to note the limitations on what international human rights law offers in practice in this field. Evelyn Douek has referred to the lack of consensus with regard to the universality of freedom of expression as a human right, the gaps, inconsistencies, and differing interpretations that the international and regional human rights systems may present in some areas, the indeterminacy in many human rights norms , the lack of information or competence to conduct the assessment and balancing of interests necessary, as well as the challenges of a necessary paradigm shift in thinking about rights, from individualistic to systemic, within the context of online platforms.
Article 22 DSA creates the figure of the “trusted flaggers” to identify a series of actors and organizations that are independent and have particular expertise and competence for the purposes of detecting, identifying, and notifying illegal content. These flaggers are entrusted with the responsibility of submitting notices “diligently, accurately and objectively”, which shall be given priority and be processed and decided upon by online platforms without undue delay. This status will be granted by national regulatory bodies. The DSA thus creates a system of local trusted expert organizations that will assist both platforms and authorities in the complex task of detecting and reporting illegal content at scale. This being said it needs to be noted that DSA accepts that this role may also be played by internet referral units of national law enforcement authorities or of Europol (Recital 61). This means that in order to force takedowns or the adoption of other restrictive measures, particularly in cases where the illegal nature of the piece of content in question is not completely clear or when there is a lack of will to follow ordinary legal procedures, public certain bodies may be tempted to use this regulatory “shortcut”. Some experts have also warned about scenarios where certain types of trusted flaggers (following specific political agendas, for example) may deliberately flood platforms with notices tagging content as illegal or non-compliant with community guidelines particularly targeting CSOs or investigative journalists.
A very relevant innovation incorporated by the DSA (articles 34 and 35) consists of additional obligations for VLOPs (very large online platforms with more than 45 million users) consisting of identifying and mitigating the different ways in which illegal content ends up disseminated through their services . It still remains unknown how platforms will end up assessing matters such as the current impact of the dissemination of illegal content and its “systemic” nature, the complex interplay between illegal content and the violation of ToS, cross-platform proliferation, or the differences in the ways that different types of illegal content are disseminated. Furthermore, systemic risks are not only associated with the dissemination of illegal content or causing negative effects on human rights, but also with other and much broader risk categories, such as negative effects on civic discourse, electoral processes, public security, gender-based violence , public health, minors, or users' physical and mental well-being. This means that risk assessment and mitigation measures to be adopted by platforms according to the DSA will not only affect illegal forms of speech but also legal but harmful content, which is of course more problematic in terms of impact on freedom of expression. The language of articles 34 and 35, as well as the regime included under article 36 regarding the power of the Commission to require VLOPs to adopt specific content moderation measures “when a crisis occurs” (sic), has triggered concern as to the risk of back-room negotiations between regulators and platforms, which may end up opaquely defining the limits to legitimate expression on major platforms and vis-à-vis particularly sensitive areas, thus blurring the line between public and commercial interest.
Conclusion
The study of informal or indirect regulatory pressures in the field of Internet governance is increasingly becoming a very important area of legal analysis. This piece has shown that even an overall positive regulatory step forward such as the DSA may also encompass and create the risk of this kind of threatening dynamics within and beyond the European continent. In any case, further research in this area may face several methodological challenges such as the need to adopt an interdisciplinary approach (including law, political science, sociology, technology, and economics), address issues of data availability and access, properly understand jurisdictional complexities , consider geopolitical sensitivities, recognize power imbalances among different stakeholders, and properly deal with technological changes, among others.
[Spanish version below]
Threats to Internet governance: the case of Europe and the Digital Services Act (DSA)
As part of its research on the topic, CELE has characterized a regulatory threat as “any type of public or private expression or action by public officials who hold regulatory power over others in which they express, suggest or insinuate, clearly or veiledly, their desire to see the conduct of their subject move in a particular direction.”
In the United States, this behavior is often referred to as jawboning. As described by Ramiro Álvarez Ugarte in a recent article, this is an extremely complex area of law, in part because assessing when public officials cross that legal line requires understanding both the scope and instruments of the existing legal framework, as well as the actual intent to achieve a specific outcome that is not necessarily predetermined or explicitly pursued by law.
In the European Union (EU), the DSA It sets out a number of key rules and principles on how intermediaries are involved in the publication and distribution of online content. It focuses in particular on content-sharing and hosting platforms such as Facebook, TikTok, Twitter and YouTube. It also introduces important new rights for users and obligations for service providers (in particular so-called large online platforms – VLOPs) in areas such as terms and conditions, transparency requirements, motivation, publicity, protection of minors, complaint handling, and out-of-court dispute resolution, among many others.
The DSA may become, and in some respects has already become, a regulatory area where the potential exercise of informal pressure deserves to be properly studied and analysed. Firstly, because the DSA explores uncharted regulatory territories on the basis, as will be shown, of general legal principles and provisions to be applied primarily by private actors (intermediaries). Secondly, because the complexity of the DSA implementation and monitoring system requires the combined action of the national regulators of each Member State and the European Commission as regards the legal obligations applicable to large technological platforms providing services in all European States and globally. This choice of the legislator (justified by the possible lack of capacity of national regulators to deal adequately with these actors) has opened the door to concerns about the political profile of the Commission, as well as to the adoption of monitoring techniques closer to political statements than to administrative procedures with safeguards and guarantees. The recent public acts of the commissioner until now in charge of the implementation of the DSA have confirmed such concerns. concerns.
This post will examine some of the provisions included in the DSA that can be used by relevant authorities to compel intermediaries to make decisions affecting user content in a manner that is not appropriately accountable.
DSA Areas for Informal Regulatory Pressures
The DSA introduces new provisions to facilitate the adoption of diligent measures against illegal content posted by users of the platforms. According to Article 9, intermediary service providers must act against illegal content upon order issued by the competent national judicial or administrative authorities. According to that Article, the territorial scope of such an order, based on the applicable rules of the Union and the national legal order, and, where applicable, on the general principles of international law, is limited to what is strictly necessary to achieve its objective. However, this relative legal ambiguity may trigger the issuance of orders by specific national authorities based on local legislation addressing global platforms (VLOPs in particular) with the aim of promoting the removal of content with extraterritorial effects. Since the content distributed by such platforms is generally offered to all their users globally, platforms may be tempted to err on the side of caution and avoid further problems with the authorities in charge, or with those in different jurisdictions, for example by establishing general filters without adequate consideration of a possible impact on the right to freedom of expression. This risk was already highlighted, even before the DSA, in light of the problematic elements included in the decision of the Court of Justice of the EU in the case Glawischnig-Piesczek v. Ireland, as some point out experts.
Article 13 provides that intermediaries not domiciled in the Union shall appoint a natural or legal person to act as their legal representative in this territory. This provision also emphasises that it will be “possible for the appointed legal representative to be held liable for any breach of the obligations set out in this Regulation, without prejudice to any liability and legal action that may be brought against the intermediary service provider”. The need for at least one legal representative for providers operating in the EU may seem a reasonable requirement, especially considering the different duties and responsibilities to which such companies are subject in this territory. However, it is also obvious that the possibility of specific natural or legal persons present in a given State being held liable for infringements committed by global online platforms has been criticised, in different contexts, as a tool that can promote the undisputed adoption of restrictive content measures even in cases where they cannot be considered legally founded by the affected providers.
Article 14 provides that in enforcing their terms and conditions, intermediaries shall act in a diligent, objective and proportionate manner, in particular “with due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of service recipients, such as freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms enshrined in the Charter.” Some authors They have pointed out, however, that this should be seen as a framework provision that creates a risk of over-reliance on fundamental rights. A vague reference to human rights as a frame of reference for private content moderation may open the door to the adoption of regulatory restrictions that, precisely in the name of human rights, may guide or predetermine content moderation decisions in a specific direction. It is important to note the limitations of what international human rights law offers in practice in this field. Evelyn Douek It has referred to the lack of consensus regarding the universality of freedom of expression as a human right, the gaps, inconsistencies and different interpretations that international and regional human rights systems may present in some areas, the indeterminacy of many human rights standards, the lack of information or competence to carry out the necessary assessment and balance of interests, as well as the challenges of a necessary paradigm shift in thinking about rights, from individualistic to systemic, within the context of online platforms.
Article 22 of the DSA creates the figure of the trusted flaggers to identify a number of actors and organisations that are independent and have particular expertise and competence for the purposes of detecting, identifying and reporting illegal content. These actors are entrusted with the responsibility of submitting notifications “with diligence, accuracy and objectivity”, which will be prioritised and processed and resolved by online platforms without undue delay. This status will be granted by national regulatory bodies. In this way, the DSA creates a system of local organisations that will assist both platforms and authorities in the complex task of detecting and reporting illegal content at scale. That said, it should be noted that the DSA accepts that this role can also be played by the Internet Reference Units of national law enforcement authorities or Europol (recital 61). This means that in order to force the removal or adoption of other restrictive measures, particularly in cases where the illegal nature of the content in question is not entirely clear or where there is no willingness to follow ordinary legal procedures, certain public bodies may be tempted to use this regulatory “shortcut”. Some experts have also warned on scenarios where certain types of trusted whistleblowers (pursuing specific political agendas, for example) can deliberately flood platforms with notices labelling content as illegal or in breach of community guidelines, especially targeting civil society organisations or investigative journalists.
A very relevant innovation incorporated by the DSA (articles 34 and 35) consists of additional obligations for VLOPs (large online platforms with more than 45 million users) to identify and mitigate the different ways in which illegal content ends up being disseminated through their services. It is still unknown how platforms will end up assessing issues such as the real impact of the dissemination of illegal content and its “systemic” nature, the complex interaction between illegal content and the violation of the ToS, the proliferation between platforms or the differences in the ways in which different types of illegal content are disseminated. In addition, systemic risks are not only associated with the dissemination of illegal content or with negative effects on human rights, but also with other, much broader risk categories, such as negative effects on civic discourse, electoral processes, public security and gender-based violence, public health, minors or the physical and mental well-being of users. This means that the risk assessment and mitigation measures that platforms must take under the DSA will not only affect illegal forms of expression but also legal but harmful content, which is of course more problematic in terms of impact on freedom of expression. The language of Articles 34 and 35, as well as the regime included in Article 36 regarding the Commission's power to require VLOPs to take specific content moderation measures "when a crisis occurs" (sic), has triggered a number of challenges. concern as regards the risk of secret negotiations between regulators and platforms, which may end up opaquely defining the limits of legitimate expression on the main platforms and in particularly sensitive areas, thus blurring the line between public and commercial interest.
Conclusion
The study of informal or indirect regulatory pressures in the field of Internet governance is increasingly becoming a very important area of legal analysis. This article has shown that even a generally positive regulatory step, such as the DSA, can also encompass and create the risk of such threatening dynamics within and beyond the European continent. In any case, future research in this area may face several methodological challenges, such as the need to adopt an interdisciplinary approach (including law, political science, sociology, technology and economics), address issues of data availability and access, adequately understand jurisdictional complexities, consider geopolitical sensitivities, recognize power imbalances between different stakeholders and adequately address technological changes, among others.
