07 September 2021

Eyes Wide Open

The Digital Services Act must confront a gordian knot of fundamental rights and public interests with respect to various affected actors. To be effective, the new regulation must both consider the current reality of intermediary service provision and provide enough flexibility for future technological developments. It currently falls short of this aim. Continue reading >>
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06 September 2021

Re-Subjecting State-Like Actors to the State

The Digital Services Act aims to limit the power of the Big Tech companies and to place more responsibility on them to control the content which is posted on their websites. Rather than providing even more power to the platforms via de facto self-regulation, the DSA should strengthen the interference opportunities of public authorities. Continue reading >>
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05 September 2021

Human Ads Beyond Targeted Advertising

If the bridling of harmful targeted advertising is a core objective of the DSA, the exclusion of influencer marketing is a grave oversight. Amendments introduced by the Internal Market and Consumer Protection Committee in the European Parliament may remedy this omission. If "human ads" were omitted, Big Tech platforms’ sophisticated data-related business models will continue to escape encompassing regulation and hence, their power will remain unchecked. Continue reading >>
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02 September 2021

General and specific monitoring obligations in the Digital Services Act

The Digital Services Act contains regulation that does not directly interfere with platforms’ freedom to operate but indirectly creates incentives for their handling of risk-aware behaviour, for example, towards personality right violations. Within the context of general and specific monitoring obligations in the Act, in particular, indirect regulation can encourage innovative and pragmatic decision-making, although further guardrails are necessary. Continue reading >>
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01 September 2021
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Using Terms and Conditions to apply Fundamental Rights to Content Moderation

Under EU law, platforms presently have no obligation to incorporate fundamental rights into their terms and conditions. The Digital Services Act seeks to change this in its draft Article 12, however, there has been severe criticism on its meagre protection. As it stands and until courts intervene, the provision is too vague and ambiguous to effectively support the application of fundamental rights. Continue reading >>
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31 August 2021

Five Reasons to be Skeptical About the DSA

In an effort to establish a “safe, predictable and trusted online environment” for the EU, the Digital Services Act proposal sets out an extensive catalogue of due diligence obligations for online intermediaries, coupled with tight enforcement rules. A freedom of expression perspective on the proposal reveals that it partly reinforces Big Tech’s control over communication, and moreover fights fire with fire by establishing a powerful public/private bureaucracy able to monitor and potentially manipulate online communication trends. Continue reading >>
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31 August 2021
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The European Constitutional Road to Address Platform Power

The functions exercised by online platforms raise questions about the safeguarding of fundamental rights and democratic values from the autonomous discretion of the private sector, which is not bound by constitutional law. The Digital Services Act horizontally translates European constitutional values to private relationships, to limit governance by platforms. Continue reading >>
02 March 2021

The Digital Services Act and the Reproduction of Old Confusions

While intended to refit the 20-year-old E-Commerce Directive, the Digital Services Act reproduces a central confusion in its predecessor: The interplay between a lack of knowledge or awareness of illegality remains a precondition to enjoy liability exemptions, however, the Digital Services Act encourages platforms proactive investigation of hosted content, which might trigger aforementioned knowledge or awareness. The inclusion of a Section 230-like ‘good Samaritan clause’, meant to facilitate proactive, own-initiative investigations of user speech by platforms, complicates matters further. Continue reading >>
29 January 2021

Does Twitter trump Trump?

Some of the biggest social media platforms recently decided to suspend the accounts of former US President Donald Trump. Even though such bans are not unprecedented, the fact that it concerned the then-still US President has triggered quite some controversy. But what about the European perspective - would the doctrine of positive obligations under Article 10 ECHR mean that Donald Trump’s right to freedom of expression was violated? Continue reading >>
12 January 2021

The Good Samaritan that wasn’t: voluntary monitoring under the (draft) Digital Services Act

On 15 December 2020, the European Commission released the long awaited proposal for the Digital Services Act, amending the E-Commerce Directive. First impressions of the proposal mention that the DSA introduces Good Samaritan protection into the EU intermediary liability regime, which the European Commission has lobbied in favour of for quite some time. Upon further examination, however, it is clear that the new protection is yet something else. Continue reading >>
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