31 August 2021
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 >>
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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 >>04 January 2021
A first impression of regulatory powers in the Digital Services Act
The EU Commission Proposal for a Digital Services Act (DSA), released on 15 December 2020, is one of the cornerstones of the Commission’s ‘A Europe Fit for the Digital Age’ political agenda. The regulatory model proposed in the DSA is highly centralised, with the Commission putting itself forward as the sole regulator with teeth vis-à-vis Big Tech, or “very large platforms”. A choice which builds on the failings of the GDPR, but creates tensions with general requirements of independence and impartiality of regulators. Continue reading >>18 December 2020
Institutionalizing Parallel Governance
On 15 December, the European Commission published its proposal for the Digital Services Act (DSA-P). One, if not the, major challenge for the regulation of social platforms is which and how content is disseminated as well as moderated on such platforms. At least when it comes to so-called very large online platforms like Facebook, YouTube or Twitter, the DSA-P’s path seems quite clear: Put platforms and the Commission in charge. In the construction of a new social order for online platforms State courts, prosecutors, law enforcement and state law as such are apparently no longer needed. Continue reading >>
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