{"id":4906,"date":"2021-02-01T10:55:12","date_gmt":"2021-02-01T09:55:12","guid":{"rendered":"https:\/\/servidor7.rubrika.es\/digital-services-act-the-challenges-of-content-regulation\/"},"modified":"2021-02-01T10:55:12","modified_gmt":"2021-02-01T09:55:12","slug":"digital-services-act-the-challenges-of-content-regulation","status":"publish","type":"post","link":"https:\/\/vincesconsulting.com\/en\/digital-services-act-the-challenges-of-content-regulation\/","title":{"rendered":"Digital Services Act: the challenges of content regulation"},"content":{"rendered":"

While the role of online platforms as de facto<\/em> private regulators has become more evident with their recent decisions to ban Donald Trump and other politicians, the European Union wants its future Digital Services Act to be a paradigm on regulating that digital sphere<\/strong>. To ensure that, it will have to overcome the challenges present in the current proposal of the European Commission.<\/p>\n

 <\/p>\n

The riots at the US Capitol in January have initiated an i<\/span>mportant\u00a0<\/span>number of debates on topics that range from the\u00a0<\/span>profound division within the <\/span>American popula<\/span>t<\/span>ion to the stability of the Western liberal democracies.\u00a0Social media and digital platforms have been at the centre of these debates<\/b>, as policymakers and civil society groups have discussed about their liability on the spreading of conspiracy theories, the danger they represent by enabling online organisation of violent groups or their rule-setting powers that allow them to ban any user \u2013 including the President of a democratic country.<\/p>\n

 <\/p>\n

\"DIGITAL<\/p>\n

 <\/p>\n

These debates have crossed the Atlantic and landed strongly a<\/span>t the European level<\/span>.<\/span>\u00a0<\/span>I<\/span>n a recent article on Politico,\u00a0<\/span>Commissioner Thierry Breton<\/span><\/b>\u00a0<\/span>\u2013<\/span>\u00a0r<\/span>esponsible for the EU policies on the internal market<\/span>\u00a0\u2013<\/span>\u00a0<\/span>compared the consequences that the riots will have on digital platforms to the paradigm shift that 9\/11 me<\/span><\/b>ant for global security<\/span><\/b>\u00a0and stated that the US legislation on the topic \u201chas collapsed<\/span>\u201d<\/span>.\u00a0<\/span>Adding on this, Members of the European Parliament (MEPs) have also spoken about the need to regulat<\/span>e more the\u00a0<\/span>companies and their powers on the\u00a0<\/span>digital sphere.\u00a0<\/span>For instance,\u00a0<\/span>European Parliament Vice-President Marcel\u00a0<\/span>Kolaja<\/span>\u00a0<\/span>defended that social networks should not be able to\u00a0<\/span>\u201carbitrary create rules\u201d and called for independent courts to decide on what should be illegal.<\/span>\u00a0<\/span>\u00a0<\/span><\/p>\n

In both cases, the<\/span>\u00a0European Commission\u2019s proposal<\/span>s<\/span>\u00a0on a<\/span>\u00a0<\/span>Digital Services Act<\/span><\/b><\/a>\u00a0(DSA)<\/span><\/b>\u00a0and\u00a0<\/span>a\u00a0<\/span>Digital Market Act<\/span><\/b><\/a>\u00a0(DMA<\/span><\/b>)<\/span><\/b>\u00a0have been presented as the\u00a0<\/span>first\u00a0<\/span><\/b>attempt of regulating the digital platforms<\/span><\/b>, with the objective of making \u201cwhat is illegal offline should be illegal online\u201d<\/span>\u00a0by establishing a clear set of obligations and responsibilities for companies operating online platforms.\u00a0<\/span>\u00a0<\/span><\/p>\n

Given the importance of these proposals, it is necessary to explore how they will tackle the issue of content regulation and what are the\u00a0<\/span>potential challenges\u00a0<\/span><\/b>they will face.<\/span>\u00a0<\/span><\/p>\n

 <\/p>\n

Who are the trusted flaggers?\u00a0<\/span><\/span>\u00a0<\/span><\/h3>\n

The DSA will set new obligations for private companies that operate online platforms, making them liable\u00a0<\/span>for the content that their users<\/span>\u2019<\/span>\u00a0post<\/span>s<\/span>. As Commissioner Breton points out, the primary goal of the DSA is to solve the issue of \u201cillegal viral content\u201d.\u00a0<\/span>These obligations\u00a0<\/span>include<\/span>\u00a0giving access to\u00a0<\/span>internal<\/span>\u00a0data to regulators\u00a0<\/span>and\u00a0<\/span>establishing measures to prevent the dissemination of illegal content.\u00a0<\/span>The creation of a system of \u201c<\/span>trusted flaggers<\/span><\/b>\u201d<\/span>\u00a0has been presented as a flagship measure.\u00a0\u00a0<\/span>\u00a0<\/span><\/p>\n

According to the proposal for the DSA, platforms\u00a0<\/span>will have to establish \u201cnotification and action mechanisms\u201d that will prioritise the notices of trusted flaggers on illegal content.\u00a0<\/span>Hence, these trusted flaggers\u00a0<\/span>are given a key role in assisting the platforms and providing guidance on what are cases of illegal content<\/span>, although<\/span>\u00a0<\/span>it is ultimately up to the company to decide<\/span>\u00a0if the notified content is illegal.<\/span>\u00a0The Commission\u2019s proposal defines them as entities (not\u00a0<\/span>individuals) who are awarded by the national Digital Services Coordinators after a successful application for the role.\u00a0<\/span>\u00a0<\/span><\/p>\n

Following this logic of having external actors participate in the supervision of the content regulation, the DSA establishes\u00a0<\/span>further obligations for\u00a0<\/span>\u201c<\/span>very large online platforms<\/span><\/b>\u201d<\/span>,\u00a0<\/span>defined as those platforms used by at least 10% of the EU population,\u00a0<\/span>and\u00a0<\/span>currently this applies to platforms which have 45 million users acr<\/span>oss the Member States<\/span>.<\/span>\u00a0<\/span>These very large platforms\u00a0<\/span>must<\/span>\u00a0conduct, at least once a year, a\u00a0<\/span>risk assessment<\/span><\/b>\u00a0on how they deal with the dissemination of illegal content, negative e<\/span>ffects to fundamental rights and intentional manipulations of their services to harm\u00a0<\/span>the public, with a special\u00a0<\/span>mention to democratic elections.\u00a0<\/span>Additionally, they must appoint an\u00a0<\/span>independent auditor<\/span><\/b>\u00a0(also at least on a yearly basis) to elaborate a report on their compliance\u00a0<\/span>with\u00a0<\/span>the norms of the regulation.\u00a0<\/span>If the\u00a0<\/span>audit report is not positive, the company will have to adopt\u00a0<\/span>the operational recommendations\u00a0<\/span>addressed to<\/span>\u00a0them and<\/span>\u00a0<\/span>take measures to implement them. T<\/span>his\u00a0<\/span>consideration must appear in\u00a0<\/span>an<\/span>\u00a0<\/span>audit implementation report, for which the company has one month to produce. In the case that the company does not implement the recommendations,\u00a0<\/span>it will have to\u00a0<\/span>explain the reasons\u00a0<\/span>in said\u00a0<\/span>report\u00a0<\/span>and set alternative measures to resolve the issues\u00a0<\/span>of non-compliance with the regulation.<\/span>\u00a0<\/span><\/p>\n

 <\/p>\n

\"DIGITAL<\/p>\n

 <\/p>\n

While these measures depend on external actors to assist<\/span>,\u00a0<\/span>cooperate<\/span>\u00a0and supervise platforms\u00a0<\/span>in regard to<\/span>\u00a0content regulation,<\/span>\u00a0the proposal of the Commission\u00a0<\/span>does not offer substantive\u00a0<\/span><\/b>indications<\/span><\/b>\u00a0<\/span><\/b>on how to define these actors or how the procedures to appoint them should be<\/span><\/b>, which might create\u00a0<\/span>confusion<\/span><\/b>\u00a0during the implementation of these measures.\u00a0<\/span>In the case of trusted flaggers, while the Commission does give the responsibility to the Digital Services Coordinators of awarding this role and sugge<\/span>sts the establishment of an application procedure, it does not\u00a0<\/span>enter into<\/span>\u00a0further details about who can apply for this position<\/span>\u00a0aside from the conditions of being independent to the platform and having expertise on the topic. Moreover, the DSA does not clarify\u00a0<\/span>if these trusted flaggers would be platform-specific and\/or country-specific.<\/span>\u00a0<\/span><\/p>\n

The same\u00a0<\/span>happens with the auditors that platforms are expected to appoint<\/span>. Apart from demanding that they are independent and experts on the field,\u00a0<\/span>these auditors should \u201chave proven objectivity and professional ethics\u201d. With these criteria, there<\/span>\u00a0are no<\/span>\u00a0clear<\/span>\u00a0indications on how platforms should choose them<\/span>\u00a0(for instance, how are professional ethics measured?)<\/span>\u00a0or\u00a0<\/span>how the auditors should carry their investigations.\u00a0<\/span>\u00a0<\/span><\/p>\n

<\/h3>\n

The importance of n<\/span><\/span>ational regulators<\/span><\/span>\u00a0<\/span><\/h3>\n

Given that\u00a0<\/span>Member\u00a0<\/span><\/b>S<\/span><\/b>tates are the first point of contact<\/span><\/b>, the DSA puts an especial emphasis on providing them with sufficient competences to enforce the rules<\/span>. As mentioned before, the national Digital Services Coordinator will have a critical role in the supervision of digital platforms.<\/span>\u00a0Whereas Member States<\/span>\u00a0can choose to have multiple authorities with competences related to the digital services, they can only appoint on<\/span>e<\/span>\u00a0as their\u00a0<\/span>Digital Services Coordinator<\/span><\/b>, who will be the point of contact of the European Commission<\/span>\u00a0and the other Member States. This Coordinator must be independent\u00a0<\/span>of\u00a0<\/span>other private and public bodies,\u00a0<\/span>although<\/span>\u00a0the\u00a0<\/span>role can be assigned to an already existing authority.\u00a0<\/span>\u00a0<\/span><\/p>\n

Aside from the power of approving trusted flaggers, these Coordinators will be granted enough powers\u00a0<\/span>within their jurisdiction\u00a0<\/span>to investigate platforms<\/span>, with requests of information and on-site inspections,<\/span>\u00a0and enforce the DSA<\/span>\u00a0through\u00a0<\/span>the imposition of\u00a0<\/span>fines and legal actions. This<\/span>\u00a0aspect is one of the most debate<\/span>d<\/span>\u00a0ones of the DSA, as Member States\u00a0<\/span>are allowed to<\/span>\u00a0<\/span>impose fines of up to 6 % of the annual income<\/span><\/b>\u00a0or turnover of the\u00a0<\/span>platform.\u00a0<\/span>\u00a0<\/span><\/p>\n

The importance of the Digital Services Coordinator does not end with its\u00a0<\/span>territorial\u00a0<\/span>jurisdiction, as it is also in charge of cooperating with its\u00a0<\/span>counterparts of other countries.<\/span>\u00a0This becomes clearer with the creation of a\u00a0<\/span>European Board for Digital Services<\/span><\/b>. This Board will advise the Digital Services Coordinators and the\u00a0<\/span>Commission and will be composed by representatives of the former. The Board will assist in the supervision of very large platforms and will give advice on the\u00a0<\/span>correct\u00a0<\/span>application of the DSA<\/span>.\u00a0<\/span>Th<\/span>erefore,<\/span>\u00a0not only the Commission, but also Members States will have a say in the\u00a0<\/span>functioning of the\u00a0<\/span>European\u00a0<\/span>regulatory framework\u00a0<\/span>concerning digital services.<\/span>\u00a0<\/span><\/p>\n

Hence, it seems unavoidable that the\u00a0<\/span><\/b>conflicts of interest between Member States<\/span><\/b>\u00a0will exceed the stages of negotiation of the DSA\u00a0<\/span><\/b>at the Council\u00a0<\/span><\/b>and will be a recurring factor within the EU digital services regulat<\/span><\/b>ion.<\/span><\/b>\u00a0The most significant example might come from Ireland, where\u00a0<\/span>a<\/span>\u00a0majority of<\/span>\u00a0digital companies have their base for the EU market. This situation might\u00a0<\/span>de facto<\/span><\/i>\u00a0make Irish\u00a0<\/span>decisions more important than that of other Member States, while also\u00a0<\/span>differentiating even more the positions\u00a0<\/span>between the different European governments.\u00a0<\/span>\u00a0<\/span><\/p>\n

 <\/p>\n

Conclusions<\/h3>\n

As it was with the case of the General Data Protection Regulation (GDPR), the\u00a0<\/span>EU aims\u00a0<\/span><\/b>to become<\/span><\/b>\u00a0a trend-setter<\/span><\/b>\u00a0<\/span>with<\/span>\u00a0regards to regulating digital\u00a0<\/span>platforms. While the DSA and the DMA\u00a0<\/span>will regulate aspects of the digital market exceeding\u00a0<\/span>online\u00a0<\/span>content moderation (<\/span>i.e.,<\/span>\u00a0targete<\/span>d advertising, competition rules, etc.),\u00a0<\/span>supervising that platforms are effectively actin<\/span>g<\/span>\u00a0to stop the dissemination of illegal content\u00a0<\/span>is a central issue that worries the European regulators.\u00a0<\/span>\u00a0<\/span><\/p>\n

After the proposal, now it is the time of the European Parliament and the Council of the EU to establish their positions and engage in negotiations on the final form of the regulations.\u00a0<\/span>As some policymakers have argued, this is a chance to solve some of the challenges that the original proposal might have and provide clearer rules, obligations and rights to public authorities, digital\u00a0<\/span>platforms<\/span>\u00a0and consu<\/span>mers.\u00a0<\/span>\u00a0<\/span><\/p>\n

 <\/p>\n

Miguel \u00c1ngel Zhan Dai, Consultant<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

While the role of online platforms as de facto private regulators has become more evident with their recent decisions to ban Donald Trump and other politicians, the European Union wants its future Digital Services Act to be a paradigm on regulating that digital sphere. To ensure that, it will have to overcome the challenges present […]<\/p>\n","protected":false},"author":1,"featured_media":4956,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[536,525],"tags":[],"class_list":["post-4906","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-actualidad-en","category-blog-en"],"acf":[],"_links":{"self":[{"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/posts\/4906","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/comments?post=4906"}],"version-history":[{"count":0,"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/posts\/4906\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/media\/4956"}],"wp:attachment":[{"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/media?parent=4906"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/categories?post=4906"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/vincesconsulting.com\/en\/wp-json\/wp\/v2\/tags?post=4906"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}