Digital Services Act

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Regulation COM/2020/825 final
European Union regulation
Text with EEA relevance
Title"Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC"
Made byEuropean Commission
Journal referenceCOM/2020/825 final
Preparative texts
Commission proposal15 December 2020
Proposed

The Digital Services Act (DSA) is a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation.[2][3]

It was submitted along with the Digital Markets Act (DMA) by the European Commission to the European Parliament and the Council on 15 December 2020.[4][5] The DSA was prepared by the Executive Vice President of the European Commission for A Europe Fit for the Digital Age Margrethe Vestager and by the European Commissioner for Internal Market Thierry Breton, as members of the Von der Leyen Commission.[6]

On 22 April 2022, European policymakers reached an agreement on the Digital Services Act.[7] The final stage before the two bills come into law is the vote by representatives of the individual parliaments and policymakers from the 27 member nations, which is considered to be a formality.

Objectives of the DSA[edit]

Ursula von der Leyen proposed a "new Digital Services Act", in her 2019 bid for the European Commission's presidency.[8] The expressed purpose of the DSA is to update the European Union's legal framework for illegal content on intermediaries, in particular by modernising the e-Commerce Directive adopted in 2000. In doing so, the DSA aims to harmonise different national laws in the European Union that have emerged at national level to address illegal content.[2] Most prominent amongst these laws has been the German NetzDG, and similar laws in Austria ("Kommunikationsplattformen-Gesetz") and France ("Loi Avia", declared unconstitutional by the Constitutional Court). With the adoption of the Digital Services Act at European level, those national laws would be overwritten and would have to be repealed.[9]

In practice, this will mean new legislation regarding illegal content, transparent advertising and disinformation.[3]

Preparatory phase[edit]

The Digital Services Act builds in large parts on the non-binding Commission Recommendation 2018/314 of 1 March 2018[10] when it comes to illegal content on platforms. However, it goes further in addressing topics such as disinformation and other risks especially on very large online platforms. As part of the preparatory phase, the European Commission launched a public consultation on the package to gather evidence between July and September 2020.[11][12] An impact assessment was published alongside the proposal on 15 December 2020 with the relevant evidence base.[13]

New obligations on platform companies[edit]

The DSA is meant to improve content moderation on social media platforms to address concerns about illegal content.[14] It is organised in five chapters, with the most important Chapters regulating the liability exemption of intermediaries (Chapter 2), the obligations on intermediaries (Chapter 3), and the cooperation and enforcement framework between the commission and national authorities (Chapter 4).

The DSA proposal maintains the current rule according to which companies that host other's data are not liable for the content unless they actually know it is illegal, and upon obtaining such knowledge do not act to remove it.[14] This so-called "conditional liability exemption" is fundamentally different[15][16] from the broad immunities given to intermediaries under the equivalent rule ("Section 230 CDA") in the United States.

In addition to the liability exemptions, the DSA would introduce a wide-ranging set of new obligations on platforms, including some that aim to disclose to regulators how their algorithms work, while other obligations would create transparency on how decisions to remove content are taken and on the way advertisers target users.

A November 16, 2021 Internet Policy Review listed some of new obligations including mandatory "notice-and-action" requirements, for example, respect fundamental rights, mandatory redress for content removal decisions, and a comprehensive risk management and audit framework.[17]

A December 2020 Time article said that while many of its provisions only apply to platforms which have more than 45 million users in the European Union, the Act could have repercussions beyond Europe. Platforms including Facebook, Google's subsidiary YouTube, Twitter and TikTok would meet that threshold and be subjected to the new obligations.[18] Companies that do not comply with the new obligations risk fines of up to 6% on their annual turnover.[18]

Legislative history[edit]

The European Parliament appointed Danish Social Democrat Christel Schaldemose as rapporteur for the Digital Services Act. On 20 January 2022 the Parliament voted to introduce amendments in the DSA for tracking-free advertising and a ban on using a minor's data for targeted ads, as well as a new right for users to seek compensation for damages.[19] In the wake of the Facebook Files revelations and a hearing by Facebook Whistleblower Frances Haugen in the European Parliament,[20] the European Parliament also strengthened the rules on fighting disinformation and harmful content, as well as tougher auditing requirements.[21]

The Council of the European Union adopted its position on 25 November 2021.[22] The most significant changes introduced by the Member States are to entrust the European Commission with the enforcement of the new rules, in the wake of allegations and complaints that the Irish Data Protection Watchdog was not effectively policing the bloc's data protection rules against platform companies.[23]

The Data Governance Act (DGA) was formally approved by the European Parliament on April 6, 2022.[24] This sets up a legal framework for common data spaces in Europe which will increase data sharing in sectors such as finance, health, and the environment.[24][25]

With Russia using social media platforms to spread misinformation about the 2022 Russian invasion of Ukraine, European policymakers felt a greater sense of urgency to move the legislation forward to ensure that major tech platforms were transparent and properly regulated, according to the Washington Post.[26] On 22 April 2022, the Council of the European Union and the European Parliament reached a deal on the Digital Services Act in Brussels following sixteen hours of negotiations.[7][27][28] According to the Washington Post, the agreement reached in Brussels solidifies the two-bill plan— the Digital Services Act and the Digital Markets Act, a law regulating competition. The latter is aimed at preventing abuse of power against smaller competitors by larger "gatekeepers". The next stage before the bills become law, is the votes from the Parliament and policymakers from EU 27 nations. This is considered to be a formality.[26]

Reactions[edit]

Media reactions to the Digital Services Act have been generally positive. In January 2022, the editorial board of The Washington Post stated that the U.S. could learn from these rules,[29] while whistleblower Frances Haugen stated that it could set a "gold standard" of regulation worldwide.[30] Tech journalist Casey Newton has argued that the Digital Services Act will shape US tech policy.[31]

Scholars have begun critically examining the Digital Services Act.[32][33] Some academics have expressed concerns that the Digital Services Act might be too rigid and prescribed,[34] excessively focused on individual content decisions or vague risk assessments.[35]

Civil Society organisations such as Electronic Frontier Foundation have called for stronger privacy protections.[36] Human Rights Watch has welcomed the transparency and user remedies but called for an end to abusive surveillance and profiling.[37] Amnesty International has welcomed many aspects of the proposal in terms of fundamental rights balance, but also asked for further restrictions on advertising.[38] Advocacy organisation Avaaz has compared the Digital Services Act to the Paris Agreement for climate change.[39]

Tech companies have repeatedly criticised the heavy burden of the rules and the alleged lack of clarity of the Digital Services Act,[40] and have been accused of lobbying to undermine some of the more far-reaching demands by law-makers, notably on bans for targeted advertising,[41] and a high-profile apology from Sundar Pichai to Thierry Breton on leaked plans by Google to lobby against the Digital Services Act.[42]

A bipartisan group of US senators have called the DSA and DMA discriminatory, claiming that the legislation would "[focus on] regulations on a handful of American companies while failing to regulate similar companies based in Europe, China, Russia and elsewhere."[43][44]

The DSA was mostly welcomed by the European media sector.[45] Due to the influence gatekeepers have in selecting and controlling the visibility of certain journalistic articles over others through their online platforms, the European Federation of Journalists encouraged EU legislators to further increase the transparency of platforms' recommendation systems via the DSA.[46]

Nevertheless, the DSA's later stage inter-institutional negotiations, or Trilogues, have been criticized as lacking transparency and equitable participation.[47] These criticisms mirror past experiences with the drafting of the EU Regulation on Preventing the Dissemination of Terrorist Content Online as well as the General Data Protection Regulation (GDPR).

See also[edit]

References[edit]

  1. ^ Milmo, Dan (23 April 2022). "EU agrees rules to force big tech to rein in illegal content or face huge fines". The Guardian. London, United Kingdom. ISSN 0261-3077. Retrieved 2022-04-23.
  2. ^ a b Stolton, Samuel (2020-08-18). "Digital agenda: Autumn/Winter Policy Briefing". www.euractiv.com. Retrieved 2020-09-02.
  3. ^ a b Espinoza, Javier (28 October 2020). "Internal Google document reveals campaign against EU lawmakers". Financial Times.
  4. ^ "The Digital Services Act package". Directorate-General CONNECT of the European Commission. Retrieved December 29, 2020.
  5. ^ Espinoza, Javier; Hindley, Scott (December 16, 2019). "Brussels'plans to tackle digital 'gatekeepers' spark fevered debate". Financial Times. Retrieved December 29, 2020. {{cite magazine}}: Cite magazine requires |magazine= (help)
  6. ^ "EU Digital Services Act set to bring in new rules for tech giants". BBC News. 2020-12-15. Retrieved 2021-01-24.
  7. ^ a b Satariano, Adam (2022-04-22). "E.U. Takes Aim at Social Media's Harms With Landmark New Law". The New York Times. ISSN 0362-4331. Retrieved 2022-04-29.
  8. ^ Candidate for President of the European Commission Ursula von der Leyen, 'A Union that strives for more: My agenda for Europe' (2019) (PDF).
  9. ^ "EUR-Lex - primacy_of_eu_law - EN - EUR-Lex". eur-lex.europa.eu. Retrieved 2022-04-10.
  10. ^ "Commission Recommendation (EU) 2018/334 of 1 March 2018 on measures to effectively tackle illegal content online". 2018-03-06. {{cite journal}}: Cite journal requires |journal= (help)
  11. ^ "Press corner". European Commission - European Commission. Retrieved 2020-09-02.
  12. ^ "Europe asks for views on platform governance and competition tools". TechCrunch. Retrieved 2020-09-02.
  13. ^ "Impact assessment of the Digital Services Act | Shaping Europe's digital future". digital-strategy.ec.europa.eu. Retrieved 2022-04-10.
  14. ^ a b "The EU's attempt to regulate Big Tech: What it brings and what is missing". European Digital Rights (EDRi). December 18, 2020. Archived from the original on 2021-04-16. Retrieved December 29, 2020.
  15. ^ The Responsibility of Online Intermediaries for Illegal User Content in the EU and the US. 2020-11-19. ISBN 978-1-83910-483-1.
  16. ^ Johnson, Ashley; Castro, Daniel (2021-02-22). "How Other Countries Have Dealt With Intermediary Liability". Information Technology and Innovation Foundation.
  17. ^ "The Digital Services Act: risk-based regulation of online platforms". Internet Policy Review. 16 November 2021. Retrieved 2022-04-10.
  18. ^ a b Perrigo, Billy (December 15, 2020). "How the E.U's Sweeping New Regulations Against Big Tech Could Have an Impact Beyond Europe". Time. Retrieved December 29, 2020.
  19. ^ "Digital Services Act: regulating platforms for a safer online space for users | News | European Parliament". www.europarl.europa.eu. 2022-01-20. Retrieved 2022-04-10.
  20. ^ "Frances Haugen to MEPs: EU digital rules can be a game changer for the world | News | European Parliament". www.europarl.europa.eu. 2021-08-11. Retrieved 2022-04-10.
  21. ^ "Facebook whistleblower Frances Haugen speaks to EU parliament". TechCrunch. Retrieved 2022-04-10.
  22. ^ "What is illegal offline should be illegal online: Council agrees position on the Digital Services Act". www.consilium.europa.eu. Retrieved 2022-04-10.
  23. ^ "Ireland's privacy watchdog sued over Google adtech inaction". TechCrunch. Retrieved 2022-04-10.
  24. ^ a b "Data governance: Parliament approves new rules boosting intra-EU data sharing | News". April 6, 2022. Retrieved 2022-04-29. {{cite web}}: Text "European Parliament" ignored (help)
  25. ^ Daly, Sidley Austin LLP-Ken; Zdzieborska, Monika; Shajko, Fiona (2022-04-27). "EU Data Governance Act - Edging Closer to a European Single Market for Data". Lexology. Retrieved 2022-04-29.
  26. ^ a b Zakrzewski, Cat (2022-04-22). "Europe to slap new regulations on Big Tech, beating U.S. to the punch". Washington Post. ISSN 0190-8286. Retrieved 2022-04-29.
  27. ^ "Digital Services Act: Commission welcomes political agreement on rules ensuring a safe and accountable online environment" (Press release). Brussels: European Commission. 23 April 2022. Retrieved 23 April 2022.
  28. ^ Foo Yun Chee (22 April 2022). "EU sets new online rules for Google, Meta to curb illegal content". Reuters. Retrieved 23 April 2022.
  29. ^ "Opinion | The U.S. could learn from Europe's online speech rules". Washington Post. ISSN 0190-8286. Retrieved 2022-04-10.
  30. ^ "EU could set 'gold standard' on big tech - Haugen". 2021-11-08. {{cite journal}}: Cite journal requires |journal= (help)
  31. ^ "European values are starting to define U.S. tech privacy, says journalist". NPR.org. Retrieved 2022-04-10.
  32. ^ "DSA Observatory – a hub of expertise on the DSA package". Retrieved 2022-04-10.
  33. ^ "DSA in Perspective Seminar Series". Brussels Privacy Hub. Retrieved 2022-04-10.
  34. ^ "The DSA's Industrial Model for Content Moderation". Verfassungsblog (in German). Retrieved 2022-04-10.
  35. ^ Douek, Evelyn (2022-01-10). "Content Moderation as Administration". Rochester, NY. {{cite journal}}: Cite journal requires |journal= (help)
  36. ^ Schmon, Christoph (2022-01-20). "DSA: EU Parliament Vote Ensures a Free Internet, But a Final Regulation Must Add Stronger Privacy Protections". Electronic Frontier Foundation. Retrieved 2022-04-10.
  37. ^ "EU: Put Fundamental Rights at Top of Digital Regulation". Human Rights Watch. 2022-01-07. Retrieved 2022-04-10.
  38. ^ "Amnesty International Position on the Proposals for a Digital Services Act and a Digital Markets Act". European Institutions Office. 2021-03-30. Retrieved 2022-04-10.
  39. ^ Nicotra, Luca (2022-02-24). "Could the EU be on the cusp of a Paris Agreement For The Internet?". www.euractiv.com. Retrieved 2022-04-10.
  40. ^ "Documents". Retrieved 2022-04-10.
  41. ^ "How corporate lobbying undermined the EU's push to ban surveillance ads | Corporate Europe Observatory". corporateeurope.org. Retrieved 2022-04-10.
  42. ^ Espinoza, Javier (2020-11-13). "Google apologises to Thierry Breton over plan to target EU commissioner". Financial Times. Retrieved 2022-04-10.
  43. ^ "Finance Committee Leaders Wyden and Crapo: Biden Administration Must Fight Back Against Discriminatory Digital Trade Policies | The United States Senate Committee on Finance". www.finance.senate.gov. Retrieved 2022-04-10.
  44. ^ "Lawmakers Argue Pending European Tech Laws Disadvantage American Firms". Nextgov.com. Retrieved 2022-04-10.
  45. ^ Bertuzzi, Luca (2021-06-25). "Digital Brief: Calls for biometrical ban, online marketplaces' threat, Germany's antitrust crusade". www.euractiv.com. Retrieved 2021-06-29.
  46. ^ Killeen, Molly (2021-06-25). "Media sector eyes opportunity to rebalance relations with online platforms". www.euractiv.com. Retrieved 2021-06-29.
  47. ^ Allen, Asha (April 29, 2022). "The EU's Opaque Policy-Making Has Never Been Clearer". WIRED. Retrieved May 3, 2022.

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