The DSA Newsletter #3

The newsletter is still alive! The long pause has to do with some technical problems on my end and the LSE grading season. A ton has happened since Newsletter #2.

VLOP/VLOSE designations are out

This is yesterday’s news, but still worth covering. On April 25, 2023, the European Commission published its list of 17 VLOPs, and 2 VLOSEs. The designation decisions are not yet public. The most surprising player on the list is German Zalando that reported to be below the threshold. However, the Commission took the view that a hybrid marketplace should be considered in its entirety. Zalando disputes the designation. The case has been already filed before the General Court as T-348/23. Clothilde Goujard of Politico reports that the Commission plans to designate further three or four services, and mentions eBay, Spotify, YouPorn and PornHub. I have published a draft paper (based on company reports as of February 17, 2023) that discusses the situation of Zalando and Spotify – see DSA’s Scope Briefly Explained. I plan to update it soon again after the new set of disclosures due to take place on August 17, 2023 (Article 24 disclosures are bi-annual). If you want to contribute by adding links, just let me know. My tracker, which greatly benefits from the work of many volunteers, including Clothilde Goujard of Politico, is here.
  Company Digital Service Type
Search Alphabet Google Search VLOSE
Microsoft Bing VLOSE
Social media Alphabet YouTube VLOP
Meta Facebook VLOP
Meta Instagram VLOP
Bytedance TikTok VLOP
Microsoft LinkedIn VLOP
Snap Snapchat VLOP
Pinterest Pinterest VLOP
Twitter Twitter VLOP
App stores Alphabet Google App Store VLOP
Apple Apple App Store VLOP
Wiki Wikimedia Wikipedia VLOP
Marketplaces Amazon Amazon Marketplace VLOP
Alphabet Google Shopping VLOP
Alibaba AliExpress VLOP VLOP
Zalando Zalando VLOP
Maps Alphabet Google Maps VLOP

EC runs three consultations

The Commission already run two consultations: on data access for researchers, and auditing. Both are relevant for the Commission’s work on delegated acts. Especially the data access consultation attracted a great number of submissions. There will be a public summary of the consultation at some point. On the links above, you can read the individual contributions. I personally submitted my views in both (see data access one here). The submissions in data access consultation are usually very supportive of broad access but some companies push against too broad remit. I highly recommend submissions of AlgorithmWatch and Stanford Internet Observatory. The auditing consultation has a lower turnout and some very critical comments from the industry. Finally, the Commission just published its API for a statement of reasons based on Lumen code (Article 24(5)), and it just published its consultation on this point, so you can share your views here.

Some recent work

I have now uploaded anew practical note about out-of-court dispute settlement bodies on SSRN entitled: Certification of Out-of-court Dispute Settlement Bodies under the Digital Services Act. My goal is to start a conversation about the best practices before the process of certificaiton starts in February 2024. Here is the abstract:
The Digital Services Act tries to split rulemaking and interpretation in content moderation. It mostly leaves providers’ rulemaking discretion intact but constrains the way providers can subsequently use their own policies against individuals. Providers must disclose a broad set of rules upfront and explain their individual decisions. Platforms, such as social media and marketplaces, must also allow internal free-of-charge appeals. One of the innovations is that unhappy users and notifiers, instead of resorting to the judiciary, can now also file “external appeals” that can be heard in front of certified out-of-court dispute settlement bodies of their choice. If they win, the platforms will pay some of their costs. This brief practical note explains the rationale of the system and considers the issues that the national Digital Services Coordinators (DSCs) will have to deal with in the certification process. Since the first certifications of the ODS bodies will not take place before February 2024, the goal is to start the conversation about the best practices before the first certifications are made.
  • I have also updated my earlier explainer: DSA’s Scope Briefly Explained. It now includes more discussion of “mere hosting” services, such as content management systems, and of the Zalando/Commission case. Your feedback helps a lot, so keep it coming.
  • Laura Edelson (New York University), Inge Graef (Tilburg University), and Filippo Lancieri (ETH Zurich) wrote an interesting report for CERRE on data access under the DSA/DMA.
  • A stellar group of content moderation researchers brought together by Matthias Kettemann and Wolfgang Schulz prepared a collection of essays entitled “Platform://Democracy: Perspectives on Platform Power, Public Values and the Potential of Social Media Councils“. It looks at the concept of social media councils, including how they relate to out-of-court settlement bodies under the DSA. It is available here.
  • Anna-Katharina Meßmer and Dr Martin Degelin (both Stiftung Neue Verantwortung) published a paper about risk auditing of the recommender systems under the DSA.
  • Inge Graef (Tilburg University) has a new paper looking at the EU regulatory patchwork for dark patterns.
  • Benjamin Raue and Franz Hofmann are editors of the first comprehensive commentary on the DSA that I am aware of. It is published in German by Nomos, and you can buy it here.

National and other developments

Deirdre Kilroy of Bird & Bird reports on Irish Digital Services Bill that should become Ireland’s DSA implementation. Do you know about other national implementations? Please let me know.
  • France passed its new influencer law and is about to pass an age-verification law. While the former hardly poses problems for the DSA, as it mostly seems complementary, the latter is a tricky one. Compatibility with Articles 34 and 28 is really an issue.
In the book (Chapter 17), I conclude the following about national experimentation:
Thus, the national attempts to legislate on digital services in the EU start looking very much like sports of obstacle course racing. The participants, in our case national legislatures, are presented with the barriers of increasing difficulty, such as crawling in the mud (notification) and barbered wire (pre-emption), and the only winners are those who manage to overcome them successfully because they have the necessary training and are not worn down by the arduous course.
  • Carl Vander Maelen (Ghent University, Faculty of Law and Criminology) and Rachel Griffin (Sciences Po Law School) have a nice piece about Twitter & Codes of Conduct on IViR’s DSA Observatory. They have a related paper here.
  • Advocate General Szpunar’s Opinion in Case C-376/22 is definitely worth a read. It advanced sensible reading of the country-of-origin principle.

Students’ work repository

I have been interviewed by many excellent students over the last couple of months. They are working on fantastic theses that can advance our understanding of various DSA issues. Obviously, at LSE I have many excellent students that I also supervise on the DSA related topics. I thought it is a pity that their work does not get a broader audience. So I decided that if there is interest, I would be happy to host a DSA repository of student works related to the DSA. The goal is twofold: to allow students to promote their work, and to signal their competence to future employers. If you have, or your students wrote an excellent thesis, just let me know. I can upload it on my web and mention it in the newsletter.

LSE DSA Course is open again

If you missed my Short LSE Course on the DSA in February, you now have a chance to join me in September. You can find more information about the course here. As part of the course, you get access to draft chapters of my upcoming books on the DSA: Principles of the Digital Services Act (expected to hit the market in May 2024).