Digital Services Act: Despite Good Intentions, Fundamental Inconsistencies Put Rights at Risk

Today, the European Commission published its long-awaited Digital Services Act (DSA) and Digital Markets Act (DMA) proposals. The DSA report involves a review of the twenty-year-old e-Commerce Directive and seeks to answer questions regarding how society should deal with the contemporary challenges linked to digital services.

In a first reaction to the lengthy draft Regulation, Iverna McGowan, Director of the Centre for Democracy & Technology Europe Office, said:

“We welcome the European Commission’s commitments to bringing more transparency to online content moderation, and its signals about protecting people from censorship and empowering them to opt out of surveillance-based advertisements. However, we fear that the draft Regulation reflects fundamental inconsistencies which would risk undemocratic and discriminatory results. The final Regulation must be grounded in international human rights and the rule of law, which means any regulations restricting people’s speech must be clearly prescribed by law and the judiciary must retain its role as the sole arbiter on legality of speech. We stand ready to work with the Commission, Parliament, and Council to work to address these serious concerns before the proposal proceeds.”

The Centre for Democracy & Technology (CDT) has advocated for the protection of key tenets of democracy, such as non-discrimination, free and fair elections, and the right to free expression and association, to be put front and centre of the EU’s efforts to regulate the online digital space. Today’s proposal signals the European Commission’s laudable efforts. The proposal includes two key elements of rights-protecting online content regulation: the “Good Samaritan” principle, which provides intermediaries with liability protections for voluntarily taking action against potentially illegal user-generated content, and the prohibition against general monitoring obligations, which has been a cornerstone of the e-Commerce Directive. Calls by CDT and other human rights organisations for more transparency over algorithms and online advertising are also reflected in the draft.

At the same time, CDT is concerned that the draft Regulation presents a confused vision for the role of online intermediaries, which puts non-discrimination, free speech, and democratic participation rights in peril. The draft shields intermediaries from liability for their own efforts to remove illegal content but exposes them to liability based on mere assertions by anyone. The draft also calls for transparency in the terms and conditions intermediaries use to moderate lawful speech while creating significant disincentives to do any such moderation. The resulting jumble would not be effective at either addressing abuse or protecting lawful speech and equal participation online. There are also provisions in the draft Regulation which risk giving way to wide-ranging opportunities for government abuse, and which set a poor model for the rest of the world.

“The draft Regulation includes many valuable ideas about the appropriate role of online intermediaries in our democratic societies. We urge the Commission to take up only those ideas that will protect people’s rights in practice, and discard those which put people’s rights and democratic principles at risk,” McGowan said.

For additional questions or press inquiries for CDT Europe, write us at [email protected].