31 October 2022
The DSA has been published – now the difficult bit begins
The Digital Services Act (DSA) has finally been published in the Official Journal of the European Union on 27 October 2022. This publication marks the end of a years-long drafting and negotiation process, and opens a new chapter: that of its enforcement, practicable access to justice, and potential to set global precedents. Continue reading >>
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28 October 2022
Fakeness in Political Popularity
Politics in a democratic society have long been a glorified popularity contest, which we can all hope the most capable person wins. Hence, politicians have an incentive to artificially boost their online popularity through fakeness – fake comments, fake followers, fake likes. On a fundamental level, a false sense of popularity may affect our election outcomes – so what are the legal limits of fakeness? Continue reading >>
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05 October 2022
Filtering fundamental rights
On platforms, the protection of fundamental rights is increasingly provided by algorithms. With the Digital Services Act (DSA) at the door, algorithms used for copyright protection were probably only the first step in regard to automated decision-making. Indeed, the DSA, conceived by the Union legislator as the new constitution of the Internet, presupposes the use of algorithmic filtering. Human pre-examination has become impossible due to the sheer amount of user-generated content. Filters are an effective moderation tool that is cost-effective compared to human review. But being fast is easier than being right: the usual method of applying European fundamental rights hangs heavily on the proportionality test, which at least at the current technological level escapes automation: fundamental rights cannot be filtered. Continue reading >>05 August 2022
The EU’s regulatory push against disinformation
Tech billionaire Elon Musk’s surprise bid to buy Twitter questions the wisdom of the current EU efforts to combat the spread of disinformation, which has relied to a large extend on platforms’ voluntary cooperation. Whether successful or not, it raises serious questions on EU disinformation policy’s reliance on platforms’ discretion to moderate this category of speech. It is likely to put pressure on the carefully constructed web of self- and co-regulatory measures and legislation the European Commission has spun to counter the spread of disinformation. Continue reading >>
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28 July 2022
Accessing Information about Abortion
The U.S. Supreme Court decision of 24 June 2022 overruled a half century of precedent supporting a constitutional right to abortion across the U.S. established in 1973 in Roe v. Wade. Essentially, Dobbs v. Jackson Women's Health Organization left the decision on abortion to individual states. The ruling, although astonishing, was not necessarily a surprise, after its draft had leaked a few weeks earlier. But to the surprise of many, almost immediately, Facebook and Instagram started removing posts informing about access to abortion pills, the Associated Press and Vice first reported. Continue reading >>
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16 March 2022
A Self-Regulatory Race to the Bottom through Out-of-Court Dispute Settlement in the Digital Services Act
Art. 18 of the draft Digital Services Act [Art. 21 in the final text] will introduce new dispute settlement processes. This addresses a legitimate policy concern, namely the need to enable effective recourse mechanisms for platform decisions. However, the concept fails when trying to combine the best of two worlds: solving disputes through real courts as well as through self-regulation. Art. 18 [Art. 21 in the final text] DSA raises serious concerns and should be substantially modified. Continue reading >>
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25 February 2022
Rethinking Rights in Social Media Governance
In the context of the broader ‘techlash’ against the power and exploitative practices of major platforms, EU lawmakers are increasingly emphasising ‘European values’ and fundamental rights protection. But relying only on human rights to guide both social media law and academic criticism thereof is excluding other normative perspectives that place greater emphasis on collective and social interests. This is deeply limiting – especially for critical scholarship and activism that calls for the law to redress structural inequality. Continue reading >>
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24 February 2022
The DSA’s Industrial Model for Content Moderation
I expect that in many real-world cases, the process prescribed by the DSA will waste resources that could better be spent elsewhere, and burden smaller platforms to a degree that effectively sacrifices competition and pluralism goals in the name of content regulation. There is a difference between procedural rules that legitimately protect fundamental rights and the exhaustive processes that might exist in a hyper-rationalized, industrial model of content moderation. The line between the two is not always clear. But I think the DSA often crosses it. Continue reading >>
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23 February 2022
The next step towards auditing intermediaries
The lack of transparency of digital platforms is a well-known problem that has wide societal implications. There is now an extraordinary opportunity to establish legally mandated criteria for meaningful transparency for online platforms in the proposed EU Digital Services Act (DSA). However, their success will depend on the strength of oversight mechanisms which need to be accompanied by sufficient access to data. Hence, we propose creating an auditing intermediary to assure the effectiveness of such oversight. Continue reading >>
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18 November 2021
Digital Services Act: European Parliament discusses website blocking against platforms
The deliberations on the Digital Services Act are taking a worrying turn. In the European Parliament's struggle to reach a common negotiating position, rapporteur Christel Schaldemose is proposing that authorities be allowed to order the complete blocking of online platforms, according to Der Tagesspiegel. Website blocking is already controversial when it is used as a last resort, the current proposal, however, eclipses anything that has gone before, because it envisages website blocking as an interim measure. This ill-conceived proposal contravenes the system of sanctions in the DSA and is incompatible with fundamental rights. Continue reading >>
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