The DSA Newsletter #1
In the coming months, I want to share some useful DSA resources on a bi-weekly or monthly basis. Here is the first batch of the DSA-related resources that I found useful and want to share with you.
- The final text of the Digital Services Act is out
The DSA was published as Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). It is available on the Eurlex website in all official EU languages.
- Some useful scholarly articles
Paddy Leerssen writes about shadow-banning under the DSA and trusted flaggers (with Appelman). Both pieces are well worth the read, as well as Paddy’s other work on the transparency of recommender systems, and advertising archives. He makes the point that shadow banning will not be possible anymore and that we need to think about the relationship between content moderation and curation (in my vocabulary, it would be content moderation vs design of services; this can be crucial to see determine when Article 14 overlaps other DSA provisions).
João Pedro Quintais and Sebastian Felix Schwemer updated their piece about the interplay between the DSA and copyright law. Given that the tension between the DSA and other pieces of EU legislation will be a big issue (think of AVMSD, Terrorist Content Regulation, GDPR, etc.), I highly recommend it as your starting point. Spoiler: it will be complicated and important.
Joris van Hoboken and Pim ten Thije write about how the DSA counts relevant users (technical term: average monthly active recipients of the service). The concept is crucial to understand because it determines when an online platform or a search engine become VLOPs/VLOSEs. The authors wonder whether the DSA will capture advertising systems on big services (assuming they qualify as online platforms) due to the low count of advertisers. They also wonder whether embeds of content on other websites will inflate the user count (IMHO, it might).
Matthias Vermuelen has a great and accessible explainer of the data access regime for vetted researchers. I think the piece should be of interest to non-EU-based researchers too. I personally still fail to see a good legal argument for why non-EU-based researchers could not tap the DSA’s tools. In my current reading, the DSA is a huge data subsidy to the world, although the projects must be limited to problems within the European Union; however, that limits less than you would think.
I have published a brief concept note on the concept of Trusted Content Creators which can be introduced through the DSA’s Codes of Conduct. The basic idea is to use the DSA as a baseline and reward the quality of content through stronger rights where needed, such as more proactive protection against abuse. The trust is defined and overseen by self-governing communities of creators, such as journalists, fact-checkers, product reviewers, influencers, and academics.
- Article symposium on Verfassungsblog
João Pedro Quintais, Joris van Hoboken and their IViR colleagues from the DSA Observatory are organising an article symposium on Verfassungsblog. It includes many interesting articles on enforcement, content moderation and beyond. My piece on why we need to invest time and effort to make the DSA tools work comes out next week.
- Twitter & other links
Daniel Holznagel and I discuss the fee structure behind DSA’s out-of-court settlement (TL;DR: in my view, there are only two acceptable models of financing: free service or fee-based service paid by the applicant which is reimbursed by the provider if he/she wins; any other reading, e.g. Daniel’s creative idea of two separate fees, make the DSA’s cost-shifting structure useless, and there is no mandate for it).
Felix Reda published a video from a conference dedicated to filtering in copyright law. The debate in the second session is quite relevant even under the DSA and for other areas of law, as the DSA leaves injunctions against intermediaries unreformed.
Mike Masnick and Konstantinos Komaitis discuss content moderation for infrastructure services and how alternative dispute resolution could help. One of the points made is that while UDRP is by no means perfect, it seems like a better model to improve on than Facebook’s Oversight Board (the DSA’s only real say on these practices is Article 14 which is rather vague; its out-of-court settlement system can be used voluntarily but is not mandatory, but Codes of Conduct are always possible).
- The DSA question(s) of the week
How will the DSA apply to the world of Mastodon? Feel free to email me your thoughts, or other difficult questions.
- The DSA graphic of the week
This quick draft sketch for my upcoming book shows one of the fascinating things about the DSA’s due diligence obligations — their overlap. Content moderation sometimes overlaps with the regulation of recommender systems or advertising. The DSA’s principle is mostly: we regulate only components (COMO, advertising, recommender systems) for less important players and the entire service design for the big ones (VLOPs, VLOSEs). Paddy Leerssen’s distinction between content curation and moderation hints at this interface too. The picture below offers some examples of what I think are activities than could be placed in various parts of the Venn diagram. If you disagree, send me your reasons!