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The new DSA - when freedom of expression is worth overdoing

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The eagerly awaited Digital Services Act (DSA) aims to provide for a safer and more transparent online environment for millions of Europeans. In many aspects, this is a very progressive and relevant proposal that may introduce a quite sophisticated and modern approach to platform regulation. However, while much of the conversation focuses on the impact of the legislation on large technology companies, very little attention has been paid to the impact the DSA could have on the fundamental rights of EU citizens. As it stands, through insufficient safeguards the DSA is in danger of failing to sufficiently uphold the prized principle of freedom of expression, writes Joan Barata, Plataforma en Defensa de la Libertad de Información.

The EU has gone so far as to guarantee this and many other rights in a Charter of Fundamental Rights. In a recent progress report on the DSA from member states, it was noted that the EU wants to “set out uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. But that same report highlighted how some member states “stressed the need to reinforce the protection of fundamental rights, especially the freedom of expression”.

Looking at specifics, there are a number of concerns around certain provisions in the current DSA. Article 8 proposes to regulate orders from national authorities to platforms regarding illegal content. As it stands, the DSA allows orders from an EU member state to have an extraterritorial effect beyond the EU. What this means is that a court in an EU member state could issue an order to remove online content and it could potentially apply globally, not just affecting content within the EU. This could preempt other national authorities from exercising their powers, duties and responsibilities. These extraterritorial effects also indirectly affect the protection of freedom of expression “regardless of frontiers” afforded under article 19 of the International Covenant on Civil and Political Rights and article 10 of the European Convention on Human Rights.

Another concerning aspect of the DSA relates to provisions for notice and action mechanisms. Article 14 fails to give a definition of what could constitute illegal content, resulting in legal uncertainty that could see content unnecessarily labelled as illegal and potentially impact on freedom of speech through excessive removals of online content. It also fails to grant hosting providers the possibility to make their own good-faith assessment, particularly in cases where notices are poorly substantiated.

One of the reasons the EU was prompted to propose the DSA was because of concern around what it calls very large online platforms (VLOPs), i.e. providers with a number of recipients exceeding 45 million users. As a result, there are proposals specifically for VLOPS which place an additional regulatory burden on them when it comes to illegal content and potentially certain forms of legal-but-harmful content. Under Article 26, VLOPs are required to address systemic risk on their platforms. Such risks are broadly defined as “dissemination of illegal content, “any negative effects for the exercise of the fundamental rights” and “intentional manipulation of their service”. These broad categories place a burden on these platforms, particularly to ensure that the vast swathes of content they process are free from illegality. Moreover, the loose phrasing around “any negative effects'' again means that content could be removed, simply through the free expression of one person, which might have an alleged negative effect on the fundamental rights of another.

An example of this would be the potential negative effect on the right to public and family life of certain public individuals that might arise from public interest reporting on them. In addition to this, avoiding the “intentional manipulation of the service” particularly in cases where this many affect “public health, minors, civic discourse, or (…) electoral processes and public security” may put platforms under the legal responsibility (overseen by public bodies) of restricting access to lawful content (and therefore protected under the freedom of expression clause) which can be considered as “harmful” under these very vague criteria.

While the DSA presents great opportunities for progress regarding the regulation of online platforms, the fundamental human rights which are at the heart of society must not be forgotten. The DSA is currently out of sync with the protection of human rights and does not allow for independent audit processes which would allow platforms to align themselves with international human rights law.

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Freedom of expression is a critical right that is crucial for sustaining democracy and developing a thriving society. While it is certainly laudable that the EU is trying to introduce a set of rules for the increasingly complex online world, EU policymakers must ensure they do not overreach and place restrictions on the fundamental rights that millions of Europeans hold dear.

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EU Reporter publishes articles from a variety of outside sources which express a wide range of viewpoints. The positions taken in these articles are not necessarily those of EU Reporter.

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