Digital Service Act and freedom of information in the European Union

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Published by Dario Dongo on 10 September 2023

Digital Services Act (DSA), introduction

Digital Services Act (DSA) introduces new rules for managers of search engines and platforms online, marketplace ed e-commerce, other large digital service providers (excluding small and medium-sized enterprises). The declared general objective is to increase safety on the website, is prosecuted (in primis) through a series of obligations on the aforementioned operators:

due diligence on the contents of the platforms online, with the obligation to adopt specific procedures aimed at preventing and removing posts that contain illegal goods, services or content (article 34. See paragraph 9 below),
points of contact with the recipients of the services. All users must have tools to quickly and easily report 'suspicious' content (DSA, article 12),
general terms and conditions. The policies, procedures, measures and tools used for the purposes of content moderation (including algorithmic decision-making and human verification), as well as the procedural rules of their internal complaint management system must be made public (DSA, Article 14),
transparency. ‘Intermediary service providers shall make available to the public, in a machine-readable format and in an easily accessible manner, at least once a year, clear and easily understandable reports on content moderation activities' (DSA, article 15).

1) Reporting and complaints procedures

Information storage service providers' (in fact, every platform online that allows interaction with users):

- 'set up mechanisms to allow a any person or entity to notify them of the presence on their service of specific information that that person or entity believes constitutes illegal content. These mechanisms are easy to access and use and allow the submission of reports exclusively electronically' (DSA, articles 16,20).

2) Restrictions on the visibility of news

The managers of the platforms online, furthermore, 'provide all interested service recipients with a motivation clear and specific for the following restrictions imposed due to the fact that the information provided by the recipient of the service constitutes illegal content or is incompatible with its general conditions:

a) possible visibility restrictions of specific information provided by the service recipient, including removing content, disabling access to content or demoting content,

b) the suspension, termination or other limitation of monetary payments,

c) the total or partial suspension or cessation of the provision of the service,

d) the suspension or closure of the service recipient's account'.

Restrictions – please note – they concern only the manifestations of freedom of expression and opinion. Not even if 'the information is widely distributed misleading commercial content' (DSA, article 17).

3) Notification of suspected crimes

In case of suspicion 'where a crime involving a threat to the life or safety of one or more persons has been committed, is being committed or is likely to be committed, the information storage service provider shall without delay inform the judicial or law enforcement authorities of the Member State or the Member States. That is, Europol, in case of uncertainty about the place where the crime may have been or may be committed' (DSA, article 18).

The concept from 'crime involving a threat to the safety of one or more persons', please note, has not been specified in any way. The censorship of social networks in the Covid era it has extended to every type of information, including the mere citation of studies published in peer review in prestigious scientific journals. Similar restrictions - also aggravated by notification to the police and judicial authorities - could now be perpetuated ex lege, recalling crimes of uncertain application (e.g. procuring an alarm).

4) Dispute Resolution

The recipients of the services – including people or entities who have submitted reports, and those who have suffered restrictions on the visibility of information – have the right to:

- 'choose any certified out-of-court dispute resolution body (…) for the purpose of resolving disputes relating to such decisions, including complaints which could not be resolved through the internal complaint management system’,

- 'be able to access free of charge, or for a symbolic amount, only the out-of-court resolution of disputes‘,

- 'initiate, at any stage, proceedings to challenge such decisions by online platform providers before a court of law in accordance with applicable law' (DSA, article 21).

Organisms of extrajudicial resolution:

– do not have the power to impose a resolution of the dispute that is binding on the parties,

– must communicate their decisions to the partieswithin a reasonable period of time and no later than 90 calendar days after receipt of the complaint'. This period, please note, can be extended to 180 days. Biblical times in the information on website, functional in fact to the censorship of information of public and contingent interest (e.g. during elections),

– can condemn the platform operator online (not also the users who have presented or suffered the complaint, even in the event of their defeat) to pay the costs of the proceedings andother reasonable expenses that the recipient has incurred in connection with resolving the dispute' (DSA, article 21).

5) 'Trusted flags'

Providers of platforms online take the necessary technical and organizational measures to ensure that reports submitted by trusted reporters, acting within their designated scope of competence (…) are given priority and are processed and decided upon without undue delay.

The qualification from "reliable reporter» is assigned by the digital services coordinator of the Member State where the applicant is established to 'any entity that has demonstrated that it meets all of the following conditions:

(a) has particular skills and competences for the purpose of detecting, identifying and notifying illegal content,

b) is independent of any online platform provider,

c) carries out its activities in order to present reports in a diligent, accurate and objective manner' (DSA, article 21).

6) CENSORSHIP

The experience in Italy of the censor Open - who went as far as deleting posts simply by referring to URLs of scientific studies and articles published in international newspapers - is therefore destined to be repeated. And indeed, as they multiply, the more 'reliable whistleblowers' and informers of news that escape (or are artfully manipulated) on the mainstream media.

The controls note that regarding 'reliable signals', they are only possible and inspired by the quantity rather than the quality of their work. In fact, these checks:

– regardless of the severity of the complaints that are unjustified and the fake news used to remove truthful information, of which one also has experience,

– are left to the arbitrator of the platform provider online, who is required to inform the national coordinator of digital services only ifhas information indicating that a credible reporter has submitted a significant number of reports that are insufficiently precise, inaccurate or inadequately substantiated'.

The national coordinator of digital services can revoke the qualification of trusted signaller 'if it is ascertained, following an investigation launched on its own initiative or based on information received from third parties', that the entity no longer meets the conditions of engagement (see paragraph 5 above).

7) Advertising on platforms online

'Every single commercial' presented by the platform providers online each individual recipient must be accompanied by the following information:

– the news that the information constitutes advertising, also through visible signs that could follow voluntary standards to be defined in the EU,

– the natural or legal person on whose behalf the advertising is presented (i.e. the one who pays for the advertising, if different),

- 'relevant information directly and easily accessible from the advertisement relating to the parameters used to determine the recipient to whom the advertisement is presented and, where applicable, how these parameters can be changed' (DSA, Article 21. See also Article 39).

The uncertainty of the norm Furthermore, it offers a basis for interpretations tailored to the interests of economic operators who pay for public editorial services, thus trying to omit information on the nature of articles published 'on commission'. Without prejudice to any changes in the codes of conduct that the European Commission 'encourages' to adopt by 18 August 2025 (DSA, article 46).

8) Protection of minors, safety of sales online of products and services in the EU

Other forecasts of the Digital Services Act concern:

online protection of minors (Article 28),
traceability of commercial operators offering products and services in the EU,
conformity of marketplace non-EU to the DSA,
obligation of managers marketplace to notify the offer of illegal products or services in the EU (articles 30,31,32).

9) Due diligence, for the giants of website

Platforms online and search engines very large (>45 million/month active users) must evaluate – through due diligence - the 'any systemic risks in the Union arising from the design or operation of their service and its related systems, including algorithmic systems, or from the use of their Services'. This assessment must include the following systemic risks:

a) dissemination of illegal content via their services,

b) any current or foreseeable negative effects on the exercise of the fundamental rights enshrined in the European Charter. Human dignity, respect for private and family life, protection of personal data, freedom of expression and information, including freedom and pluralism of the media (with all due respect to the censorship mechanisms highlighted above), non-discrimination, respect for the rights of minors, 'high consumer protection’,

c) 'any current or foreseeable negative effects on civic debate and electoral processes, as well as on public safety'. Which will thus be able to justify further censorship operations,

d) 'any negative effects, actual or foreseeable, in relation to gender-based violence, the protection of public health and minors and serious negative consequences for the physical and mental well-being of the person' (DSA, Article 34). With good memory of the censorship on side effects of the unspeakable injections imposed on the population in recent years.

10) Censorship tools

Measures of 'mitigation' of the aforementioned risks should be 'reasonable, proportionate and effective, adapted to specific systemic risks'and lend'particular attention to the effects of such measures on fundamental rights'. However, the rights remain on the Charter and the censorship of information on the website is legitimized here.

Censorship tools in fact they include – as expected and already tested in Italy on one of the very few sites website of independent information on geopolitics, the Antidiplomatic – theexperimentation and adaptation of algorithmic systems' of search engines and platforms online.

11) Censorship on orders from Brussels

'The European Commission, in cooperation with the [national] digital services coordinators, may issue enforcement guidance'of the aforementioned censorship tools'in relation to concrete risks' (DSA, article 35).

'In case of crisis, the Commission, on a recommendation from the Committee, may adopt a decision requiring one or more providers of online platforms (…) or very large online search engines' (DSA, article 36).

Provisional conclusions

The real crisis it is that of democracy. Yesterday the pandemic, today the permacrisis and the interference of the European Union in a conflict between third countries on its doorstep can justify the deprivation of fundamental rights to express and share information and opinions. 'Those who turn the wheels of the world' (cit. Haruki Murakami) have thus legitimized their absolute power over people's lives, before our eyes. Guilty of not having protested with the effectiveness that was needed, until (in theory) it was possible.

In this dystopian picture, the only good news is the Commission's encouragement to draft EU codes of conduct alsoin order to promote full and effective equality of participation, improving access to online services which, through their initial design or subsequent adaptation, respond to the particular needs of people with disabilities' (DSA, Article 47). Thus we can glimpse the hope of reducing at least some of the difficulties of the most significant and neglected minority. (2)

Dario Dongo