What is the Digital Services Act?
The Digital Services Act (DSA) is a proposal by the European Commission, submitted for consideration to the European parliament in December 2020. One main aim of the proposal is to increase the regulation of illegal and disreputable content on the internet, making the hosting sites accountable. The legislation, which we should remember is still to be voted on, is a significant update to the e-Commerce Directive from way back in the year 2000. The DSA is an enactment in the spirit of Britain’s 2019 Online Harms White Paper, which set the stage for making internet companies liable for hosting problematic content.
The DSA legislation is lead by Margrethe Vestager and Thierry Breton, EU commissioners known for their stance against big tech. There is also a companion proposal, the Digital Markets Act (DMA), specifically aimed at promoting competition against tech monopolies. Though the legislation is European, if ratified, it will set the tone for worldwide regulation — such is the nature of the internet’s interconnectivity. As with the GDPR, companies based in America with international user bases, like Facebook and Google, will be affected by European legislation.
The impact of the DSA
The DSA is the next big step in the ongoing internet regulation conversation, a prominent facet of which is the right to free speech. At this point, envision something like the establishment of justice in a Wild West town like Deadwood, and you’ll have a general idea of how uncharted a territory we’re in. How content should be regulated, who should regulate it, what the penalties should be for infractions, and whether it should even be regulated, are all ongoing questions.
According to the proposal, the EU would be able to impose fines without having to go through the courts. The DSA stipulates that the largest companies (those with 45+ million users), can be fined up to six percent of their annual revenue if they are found hosting hate speech or the sale of illegal goods. It’s worth noting that the corresponding DMA will fine up to ten percent if a company is found to have deliberately disregarded market competition rules.
The takedown
So, do online platforms need to police themselves? Well that might be a lot of work for the companies and also might seem a bit dictatorial. The DSA has thus conceived of a rather clever solution to quell the optics of free-speech impingement while attempting to put some control back in users’ hands — the same hands which have been slipping off the big tech iceberg for quite some time now. The act’s solution is to have users flag potentially inappropriate content, effectively bringing it to the platform’s attention, thus causing the platform to react to the material — and by react we mean quickly removing it. This is where the legislation could use more nuance. The companies’ liability kicks in the moment something is flagged, so they are more or less automatically compelled to remove the content to protect themselves. It’s corporate action that seems commensurate with the modern day face-saving tactics of cancel culture: cancel first, ask questions later, and in this instance it’s a policy that various advocacy groups like the EDRi and the EFF have already taken issue with.
To be fair, the DSA also intends to protect against unjustified takedown claims, supporting the removal of users who proliferate them, lest the internet become one big indiscriminate snitch-pool. To that end, the DSA supports working with “trusted flaggers”, who will actually gain access to the company’s data. The large tech companies will also have to perform a self-audit, which will be checked by independent researchers. While much of this process is under the guise of stopping the spread of illegal or harmful content, what it will really do is give the government and perhaps the world at large more insight into the vast and often impenetrably complex data practices of large tech companies. However, it’s worth noting that when the data collected by these companies gets into more hands, trusted though they may be, there is an increase in the leak/breach possibilities.
One of the proposal’s aspects which the aforementioned advocacy groups do favor is the desire for increased transparency around not only the content takedown reasoning, but targeted advertising and content recommendation. If requested, platforms are required by penalty of fine to publish their algorithms publicly, which is a source of dismay for the companies, since it’s kind of like asking a fast food chain to reveal its secret sauce recipe.
Big sweeping legislation for big sweeping tech?
In the last twenty years, the internet has connected the world in ways that have created global legislation issues exponentially more complex than anything seen before. The EU is thus hoping that its “Brussels Effect”, the rule of law spread over Europe via the EU, will take care of the problem in blanket fashion.
But not so fast.
Don’t forget (how could you) the U.K. has exited Club Europa, and won’t be as beholden to the DSA as the remaining EU.
And then let’s take a look at, say, Germany, a major EU country that is rife with its own regulation in various sectors. While the DSA/DMA are lingering in negotiation, Germany has passed its own digital competition amendment (GMB). As Paris, Rome, Berlin, and Warsaw eagerly urge Vestiger’s legislation into existence, Germany is taking a stab at reining in tech giants and increasing competition.
Throwing a regulatory blanket over the entire EU does after all have an interesting economic purpose. According to Commissioner Vestager, the reason that Europe hasn’t grown its own tech giants on par with those in America or China is that it’s had a market fragmented by different European companies each with their individual regulations. Legislation like the DSA and DMA would help turn Europe into a single tech market like the US or China, a widespread base from which to grow its own competing tech.
In the meantime, though, if the DSA is passed, the world’s tech behemoths will have to adjust to a new state of affairs that we can only hope will approximate the utopia described in the indelible work, Austin Powers: International Man of Mystery, a world of “Freedom and responsibility”– “a very groovy time.”
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