Users of online platforms need protection from foreign authorities under the DSA

The Digital Services Act assumes that all EU Member States will equally care about rights of all EU residents. This is just a polite fiction. Consumers and businesses need effective tools for protection against excesses of foreign authorities.

The Digital Services Act now being considered by the EU legislature is an important opportunity to ensure that EU law continues to support the great economic and social benefits that Europeans have from online services. However, as I argue in a new EPICENTER report, in its enthusiasm to protect users from online platforms, the DSA creates new serious risks for users - from state authorities. And as much as European consumers or small businesses may justifiably hope to be protected by their domestic governments, the elephant in the room is just how much regard to their interests will other EU countries really have.

The DSA implicitly adopts a polite fiction that all EU Member States will equally care about interests of not only their citizens and businesses, but of all others. It then gives far-reaching powers to domestic administrative authorities, not even courts, to issue binding orders against what they see as illegal content across the EU. It also gives domestic authorities powers to approve so-called “trusted flaggers”—organisations whose complaints about content directed to online platforms will by law have priority.

Take, for example, a visual artist using an online platform to sell across the EU her works. Or think of a writer, making a living with a paid email newsletter using an online platform. Their work may be perfectly acceptable in their home country, but at the same time be seen as illegal “hate speech” or “harmful promotion of a dangerous ideology” in another EU country. Can the artist and the writer feel safe from actions of other EU governments or of foreign “trusted flaggers”?

Selected domestic administrative authorities, not even courts, will under the DSA have a power to issue “orders to act against illegal content” and to ask for the content to be removed for the whole EU. The DSA does require the authority issuing an order to check if the content is actually illegal everywhere where the order is meant to apply. And the online platform that receives the order could theoretically devote significant resources to investigate each case and perhaps even fight the order in the courts of the country from where the order came. However, the experts know well that platforms, especially smaller or less profitable ones, will rationally choose to follow such orders, even if it means “overblocking” of content that may even be legal everywhere in the EU except for the complaining country (or even legal in that country). Both the artist and the writer may be surprised and mortified to be affected this way by a foreign authority, but there may be little they can do. Can they really be expected to fight the order in foreign courts, which could require a good deal of time and money?

Similarly, if a user becomes a victim of the activity of a foreign trusted flagger — all she may be able to do is complain to authorities in that foreign country. And if those authorities share the views of the flagger and see nothing untoward in taking down the user’s content?

As I argued elsewhere, those risks can be addressed by giving users accessible and effective tools to challenge actions of foreign regulators. This may involve, for example, additional powers for domestic authorities from the user’s or the service provider’s country to countermand unmeritorious and excessive foreign orders or notices. To avoid creating more harm than good, the DSA needs to adopt a more realistic view of the consequences of deep disagreements that are present in the EU today.

These are not the only examples in the DSA of the interests of users of online platforms not being given sufficient weight. Small business users of very large online platforms who today compete successfully by skilful targeting of online advertising may soon realise that their advertising strategies will become fully public for all competitors to copy. This may be a great gift especially to non-EU competitors who don’t understand local consumers as well, but I doubt that the authors of those provisions considered such consequences. The DSA is too important to be rushed through with such obvious deficiencies.