Risks and Rewards: CELE and CiTiP cohost roundtable on systemic risks and fundamental rights in the Digital Services Act

On December 4, 2024, the Center for IT and IP Law at KU Leuven (CiTiP) and the Center for Studies on Freedom of Expression and Access to Information (CELE) at Universidad de Palermo co-hosted an in-person roundtable in which CELE’s Director Agustina Del Campo and researcher Nicolas Zara presented their upcoming paper (coming soon) entitled Are Risks the New Rights? The Perils of Risk-based Approaches to Speech Regulation”, written in co-authorship with CELE’s Deputy Director Ramiro Álvarez Ugarte. The paper critically examines the risk-based approach to platform regulation introduced by the DSA from the perspective of International Human Rights Law and explores the global implications that could follow from its adoption in other pieces of legislation around the world or from its consolidation as the reigning co-regulatory paradigm.

The risk-based approach is not new and can be genealogically traced to previous experiences and regulatory trends. It first emerged in environmental law, consumer protection, and financial services, and eventually became its own legal “regime”—a particular way to connect and manage certain legal rights and obligations to achieve certain goals. What is unique to current iterations of risk-based approaches is that, when applied to content platforms, they ultimately entail classifying content and speech.

The paper discusses the history of the current trend towards risk-based regulation by highlighting the use of risk as a concept in different legal institutions and the rise, in the 1970s, of a managerial approach to regulation. Next, it dwells on why states have turned to a risk-based approach for the tech sector. The paper argues that regulating speech like the DSA does poses unique challenges and trade-offs for freedom of expression. In particular, it discusses the differences between risks under the UNGPs and under the DSA, and the tension of the latter approach with the popular three-prong test used by many courts to analyze the legitimacy of restrictions to freedom of expression. The piece argues that the risk-based approach pushes rights out of the center stage of Internet governance and may create a logic of “symbolic compliance” where their governance role is further diminished. Finally, it identifies opportunities to address the challenges identified, especially in an enforcement stage that remains open to efforts of this nature.

Following the presentation, Professors Aleksandra Kuczerawy from CiTiP and Joris Van Hoboken, Director of the DSA Observatory at the University of Amsterdam, offered their insights to kickstart the discussion. Over the course of a two-hour session, participants explored diverse aspects of the DSA’s systemic risk perspective, such as its relation and compatibility with settled Human Rights and Fundamental Rights standards, the scope of the due diligence obligations stemming from it, its procedural or substantive nature and the incentives it creates for all stakeholders in the DSA ecosystem.

At CELE and CiTiP, we celebrate the diversity of viewpoints brought to the discussion by the academics and the representatives of civil society organizations that participated. We hope this immensely rewarding discussion marks the beginning of many future collaborations between our two centers and paves the way for a long-lasting relationship.