EU’s Deal on Online Content Bill Still Leaves Questions Unanswered 

On Saturday, April 23, 2022, at 2 a.m. the European Parliament and EU Member States reached a preliminary agreement on the Digital Services Act (DSA). The DSA establishes an extraordinary new threshold for internet platforms’ accountability when it comes to unlawful and harmful information. According to the EU institutions, it would strengthen internet users’ basic rights and provide a uniform set of regulations for the internal market, making it easier for smaller platforms to grow. 

“Today’s agreement on the Digital Services Act is historic, both in terms of speed and of substance. It gives practical effect to the principle that what is illegal offline, should be illegal online,” said European Commission President Ursula von der Leyen. 

The timing for this approval was important for President Emmanuel Macron, who wanted to get this landmark bill approved during the country’s presidency of the Council of the European Union that ends in June. But this approval also came one day before Macron faced Marine Le Pen in the presidential election in France, and it could have helped cement his victory on Sunday, April 24. 

However, this rush to get the deal done after 16 hours of negotiations between the EU institutions on the last day also left some questions unanswered and one new important addition to the bill. 

The last-minute addition to the bill is the Crisis Response Mechanism. Considering the crisis in Ukraine and the impact of manipulation of online information, EU institutions added this new article. This mechanism will enable the European Commission to mandate “proportionate and effective measures to be put in place for the respect of fundamental rights” on very large online platforms and search engines, which may include taking down any content. The Commission could trigger this status only with the approval of the national authorities, and this status will last for three months. 

The bill also raises some questions that will need to be answered, particularly in areas related to risk management, online content and recommender systems. 

First, the DSA makes it mandatory for very big digital platforms and services to assess the systemic risks they produce and conduct risk reduction analyses. This analysis must be performed once a year and will allow for ongoing monitoring with the goal of lowering the hazards associated with the spread of illicit content; manipulation of services with negative repercussions for democratic processes and public security; gender-based violence and minors; and major ramifications for users’ physical or mental health. 

However, regulators may probably need to further explain in secondary legislation how these annual risk assessments are to be implemented. Thus us particularly important because failing to comply with this obligation and the audit that regulators may carry out could mean the imposition of a fine up to 6% of worldwide turnover. 

Second, the DSA establishes strict requirements for removing illegal content, but when it comes to harmful but legal content, platforms should moderate this content as per terms and conditions. Regulators may also want to define or provide guidelines about the type of content that should be removed or moderated to achieve consistent results across platforms. For illegal content, the DSA will create a category of trusted flaggers, a group of experts nominated by the national authorities to monitor the platforms. For Google this may be particularly important, as the text finally included search engines — but its responsibilities for illegal content will be assessed case-by-case, and it may also need further clarification. 

Third, platforms will have to explain how they personalize content for their users via recommender systems. However, for large online platforms and search engines, they will have to offer users a system for recommending content that is not based on their profiling. While platforms are left with wide discretion to design these new recommender systems, they will have to pass the regulator’s audit, or they may face fines.  

The provisional agreement reached on Saturday will be subject to formal approval by the Council and the European Parliament, which is expected to happen soon. Once the DSA is formally passed, it will enter into force 15 months later, or January 1, 2024, whichever is later. However, for large online platforms, it will apply in four months after the approval.  

Read more: EU Could Unveil Digital Services Act on Friday, But Not a Done Deal