EU Digital Services Act: grasping the opportunity to refresh the resilience of our European democracy
Source: Future of Privacy Forum
Online platforms have gained a dominant role in our lives and in our democracies. We do business online, we get informed through online platforms, we buy products, organize events and exchange views on topics of our interest. There is, at the same time, a need to better accommodate to this new reality while we maintain our privacy, dealing with fake news, and curbing risks and challenges that our new, digital reality generates. Will the EU grasp this as an opportunity to refresh European democracy or will it let it pass?
Along with other flagship initiatives such as the Green Deal, in her political guidelines and in the European Commission (EC) Communication ‘Shaping Europe’s Digital Future’, EC President Ursula von der Leyen described her plans to grasp what opportunities digital technologies create. She talked about how Artificial Intelligence (AI), the Internet of Things and 5G are fast transforming the world and our everyday lives and how the General Data Protection Regulation (GDPR) can act as an example of success story.
The February 2020 EC Communication ‘Shaping Europe’s Digital Future’ defined the Commission’s intentions to create the conditions and deploy capacities to become a leader in ensuring the integrity and resilience of data infrastructure, networks and communications. It expressed the plans for Europe to be self-defined, but, at the same time, remain open to collaboration with parties willing to play ‘by European rules and meet European standards’ and to shape global interactions.
The Digital Services Act package is the concrete plan which “will upgrade our liability and safety rules for digital platforms, services and products, and complete our Digital Single Market.” The February EC Communication announced actions under the heading of the Digital Services Act in two parts: one dealing with online liability and safety and with the harmonized regulations for the digital single market, based on the logic of the E-commerce Directive around illegal and harmful content- envisaged to result in an EC proposal for new and revised rules by the end of the year. The second part of the package creates some ex-ante rules regarding, for instance, contestability issues for some large platforms.
This aims to upgrade online governance, a much needed act as the policies in place date back to 20 years. It sets up common rules to expand the liability of digital platforms and online advertising services in the EU and enacts measures to limit the spread of online hate speech and disinformation. Lately, the EC also launched a public consultation on the Act to gather opinions from businesses, individuals, and the civil society. But are these plans fit to boost the resilience of European democracy against emerging threats, such as disinformation?
The current E-Commerce Directive includes standard rules for the intermediaries’ liability in content sharing. If the EU aims at creating and implementing an ambitious plan, revising the responsibility for online content should be given greater importance. Private companies which are part of the content dissemination chain could, for instance, be given more incentives and safeguards to work on liability, in co-operation with the regulators. Equally important is the need of the latter to adopt clearly defined concepts regarding illegal information, misinformation and hate speech.
Human rights, such as the freedom of speech, need to be equally protected both offline and online. This is for a plain reason: since it is easier for platforms to deal with online material by taking it down, there is a proven tendency in the current regulations to accommodate to this (e.g. in the copyright regulation). For the moment, according to the current regulations and their definition of liability, a platform is either not responsible at all for their online content or they have an editing responsibility. This raises issues as many online platforms tend to boost certain types of content and to hide other types. Thus, there is the need to create a regulation that combines balancing rights and liability. Furthermore, in order to successfully promote a competitive EU in the digital economy, the EU should increase the transparency of online platforms, hold companies behind the platforms responsible for removing illegal content, and create regulatory consistency by harmonizing EU rules.
A whole new digital world has been created in the recent years and it is the future. The successful implementation of the Digital Services Act is not only an opportunity to upgrade the policies on online platforms, but it will also modernize the European economy and help to refresh the resilience of our European democracy vis-à-vis hate speech and misinformation.