The EU’s answer to tackling illegal and harmful content online has been approved. As is often the case, a number of important details still remain to be clarified
An end to the current self-regulatory approach: Where there’s political will, there’s clearly a way. As was recently the case with the Digital Markets Act (DMA), EU institutions have now finalised the other important pillar of legislation for the digital economy – the Digital Services Act (DSA). With this latest (and record breaking) political agreement, the EU will soon have far-reaching legislation in place to tackle online harms, putting an end to the self-regulatory approach based on codes of conduct that has been in place since 2016 for hate speech, and since 2018 for disinformation. The DSA will apply 15 months after entry into force (but sooner for very large entities). As is also the case with the DMA, its ultimate effectiveness will depend on its practical implementation and details still unknown.
A complex and far-reaching regulation: Technology companies with more than 10% of users in the EU (about 45m citizens), will soon have to conduct regular assessments of systemic risks such as disinformation and deceptive content on their platforms, and other types of online harms. They will also have to implement appropriate mitigation measures subject to independent audits. There are specific requirements for the removal of illegal content, whereby platforms have to respond promptly to ‘trusted flaggers’ – a group of experts nominated by national authorities. Content that is considered legal but harmful will have to be dealt with based on platforms’ own terms and conditions (a particularly challenging task). The DSA also introduces transparency requirements for algorithms, with platforms having to explain how content is promoted. They will have to give end users the option to not be profiled, and will be prevented from using so-called ‘dark patterns’ to influence users’ choice. All at the same time as maintaining freedom of expression.
A shift in power from national authorities to the EC: Compared to the initial proposal, the final agreement puts more power in the hands of the European Commission rather than leaving enforcement exclusively in the hands of member states. The EC will have exclusive powers on very large online platforms (VLOPs). Much like the DMA, the DSA will therefore turn the Commission into a fully fledged regulatory authority. This should facilitate a more consistent approach, and reduce the risk of problems similar to those that emerged with the one-stop-shop mechanism in the GDPR. To build and maintain this capability, the EC will charge platforms a fee not exceeding 0.05% of their worldwide annual net revenue.
