Today, December 15, the European Commission launched a legislative reform that holds the promise of systemic regulation of large online platforms, and consists of the Digital Services Act (DSA) and the Digital Markets Act. Access Now’s initial assessment focuses on the DSA, and highlights key issues that will affect human rights in the EU and beyond.
Access Now has been advocating for a human rights-based and user-centric regulation that will establish clear responsibilities for large online platforms with strong enforcement mechanisms that can hold them to account.
“Access Now is glad to see that the protection of users’ fundamental rights is one of the main aims of the draft Regulation. We haven’t won the war yet, but noting the protection of human rights as a driving force behind the DSA is certainly a victory in a decisive battle,” said Eliška Pírková, Europe Policy Analyst at Access Now. “People, companies, and governments all need clarity and systemic rules for the online ecosystem. The DSA is not perfect yet, but Access Now welcomes the European Commission to advance its efforts.”
Positives
After much anticipation, pressure, and lobbying Access Now welcomes several of the European Commission’s inclusions, such as:
- Upholding the main principles of a conditional model of intermediary liability as once established by the e-Commerce Directive;
- While preserving the prohibition of general monitoring, not allowing so-called “active fact finding obligation” to be imposed on online platforms;
- Taking the call for meaningful transparency seriously, as transparency reporting will not remain just a voluntary commitment but a binding obligation for online platforms; and
- Creating a specific set of responsibilities for “very large online platforms” to recognise the systemic human rights violations that arise from their data harvesting business models and huge power asymmetries.
Question marks
Several key issues contain many positive elements in the text, but they also raise questions or require additional safeguards:
- While it’s a good start that the current draft sets forward criteria for meaningful transparency for content moderation, online advertisement, or algorithmic curation, the list should contain further demands, as suggested in Access Now’s position.
- Meaningful transparency is an essential criterion for platform accountability, but other steps are also necessary, and noticeably lacking from the draft. Some methods used by the ad-tech industry impose systemic threats to human rights, especially when in the hands of very large online platforms. Therefore, the EU should ban targeted behavioural tracking and individual cross-party tracking.
- The proposed Notice-and-Action mechanism is not tailored to a particular category of allegedly illegal content online and needs to be developed further. The assessment of the legality of notified content still rests with online platforms. From a position of a global organisation, Access Now reminds the European Commission that the DSA will set a precedent for content governance beyond the European Union. If not done right, the negative impact of this legislation could be far-reaching for human rights protection in the online ecosystem.
- There is no inclusion of notifications to content providers before any action is taken with regard to the piece of notified content. Such a measure would introduce due process safeguards into the Notice-and-Action procedures. The purpose of a notification to the content provider would bring the procedural fairness element.
- The establishment of the systemic risk assessment carried out by very large online platforms is principally a positive outcome. However, the proposed risk assessment seems to rely mainly on self-assessment conducted by platforms themselves with very limited public independent oversight.
- While a decentralised model for the DSA enforcement mechanism at the Member State’s level consisting of so-called Digital Services Coordinators is positive, the draft Regulation follows the country of establishment principle. This approach seems to follow the same logic as the one stop shop mechanism in the GDPR that serves online platforms’ interests over users and their rights.
The DSA proposal sets the legislative process off to a good start. But there will be many battles to come in the European Parliament and in the Council under immense pressure from other stakeholders — companies and governments alike — with strong interest. Access Now will continue its efforts to protect people’s rights and to secure a free and safe online ecosystem for everyone, and is excited by the prospect of future cooperation with the EU to help ensure the DSA becomes a practical, useful, and human rights-driven piece of legislation.