The European Commission’s Approach to DSA Systemic Risk is Concerning for Freedom of Expression

Joan Barata is Senior Fellow at The Future of Free Speech and a Fellow of the Program on Platform Regulation at the Stanford Cyber Policy Center. Jordi Calvet-Bademunt is Research Fellow at The Future of Free Speech, and a Visiting Scholar at Vanderbilt University. Shutterstock 1. Introduction The recently adopted Digital Services Act (DSA) constitutes the new legal horizontal framework in the EU regarding the provision of online services. According to the European Commission, the DSA aims “to create a safer digital space in which the fundamental rights of all users of digital services are protected.” The DSA includes a complex and diverse set of rules for different players; significantly, it includes obligations for ‘very large online platforms’ (VLOPs) and ‘very large online search engines’ (VLOSEs) to assess and mitigate the so-called systemic risks their services are deemed to generate and/or contribute to. These risks include, among others, “the dissemination of illegal content” and “actual or negative effects for the exercise of fundamental rights [or] on civic discourse and electoral processes, and public security.” How these risks are going to be specifically assessed and mitigated by platforms still remains uncertain, particularly when it comes to incorporating fundamental rights impact assessments into the equation. As a matter of fact, the incorporation of such rules into the DSA triggered some caveats and warnings among civil society and experts since they place in the hands of a political body such as the European Commission the power to enact new speech rules affecting legal…The European Commission’s Approach to DSA Systemic Risk is Concerning for Freedom of Expression