DSA enters into force: will the European Union live up to its regulation?
In recent times, the expectations of governments, platforms, academia and digital rights organizations have been placed on the Digital Services Act (DSA), the ambitious package of rules with which the European Union seeks to regulate platforms.
The law, which promises to establish best practices for moderation, transparency and mitigating disinformation in digital spaces, has been a model for projects already being discussed outside the borders of the European Union, such as the "fake news bill" in Brazil. However, with its entry into force on February 17, its possible risks and the challenges of its implementation have begun to resound.
The effects of the DSA have been deferred in time. Since August 2023, the main Internet companies -those with more than 45 million users in the European Union- are subject to its obligations, but as of last Saturday, these rules started to be applicable to the other Internet intermediaries: less popular social networks, search engines and app stores, among others, operating in that territory.
Cracks in the institutional architecture.
The new regulatory landscape brings very demanding obligations for Internet companies, but it also imposes a duty on European institutions to meet their own aspirations, which means developing suitable mechanisms. For the time being, these first months of implementation have revealed some technical barriers.
The start of the war between Israel and Hamas, for example, took the European Commission by surprise, as it was unable to monitor the outbreak of disinformation and violent graphic content that accompanied the first days of the conflict. The Commission had to turn to external digital investigators to gather sufficient evidence of the damaging content that was circulating, as its teams were not prepared to deal with the emergency, two Commission staffers told Politico.
The Commission's limitations have also been felt in its workforce. While Ofcom, the UK body charged with overseeing compliance with the Online Safety Act - the UK's regulation of platforms - has 300 people dedicated to this work, the Commission has just 75.
Lack of guidelines.
The DSA obliges large platforms to undergo external audits to verify that they are complying with some of the main requirements of the law, such as the duty to assess systemic risks, create plans to mitigate them, and draw up crisis plans.
To guide the audits, the results of which are due for the first time in August of this year, the Commission issued regulations last year. However, the document does not appear to address the development of this requirement in sufficient depth. According to Jason Pielemer, executive director of the Global Network Initiative, Hillary Ross, an advisor to the Global Network Initiative, and journalist Ramsha Jahangir, the regulation does not establish definitions or methodologies for conducting the reviews.
The lack of guidelines in this area prevents a rigorous and comparable analysis between Internet companies' systems, and also jeopardizes rights such as freedom of expression. For example, in order to understand how a platform complies with the obligation to remove illegal content -such as the promotion of terrorism- there are no guidelines that indicate which countries' laws would make such publications illegal.
In addition, the standard requires audits to review companies' technically complex internal systems and ensure that they are meeting their obligations under the DSA with a "high level of accuracy." Given that few firms have experience in this kind of review, the researchers claim that this standard would be virtually impossible to meet.
Digital Service Coordinators: a temptation for authoritarian regimes.
February 17 marked not only the entry into full force of the DSA, but also the deadline for the states that make up the European Union to nominate the entities that will oversee compliance with the law at the national level, called Digital Services Coordinators.
To date, countries such as Germany, Belgium and Poland have yet to announce which local entities will be in charge of these tasks, while those that have complied have introduced communications, consumer protection and competition authorities.
The election of the Coordinators is not a minor issue, as the DSA gives them great powers to enforce the law. Among their powers are receiving and evaluating user complaints, demanding information from the platforms about alleged violations of the law, imposing fines, accrediting investigators to access platform data and choosing trusted flaggers, a kind of agents with the ability to detect illegal content on the platforms and request the removal of priority content.
Given that Coordinators can be appointed by the executive branch, there is a risk that these institutions could become a means to limit digital speech. David Kaye, former UN Special Rapporteur on Freedom of Expression, recently warned about the possibility of these mechanisms being used by political actors to censor other voices.
The same warning was made by Anupam Chander, professor of law and technology at Georgetown. Considering the DSA's vocation to become a global model, similar mechanisms in the hands of an authoritarian government could be used arbitrarily: asking platforms for information about critics, selecting alerters to flag opposition content as illegal, approving investigations of allied institutions or arbitrarily affecting platforms that are uncomfortable.
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