27 January 2022
“Digitising Europe” is the new ELF Blogposts series that engage with policymakers, industry experts, and academics in order to contribute to a better understanding of how technological change is also driving social, political, and regulatory affairs.
By Ricardo Silvestre, International Officer at MLS – Movimento Liberal
A specific aim of the proposed new Digital Services Act (DSA) for the European Union (EU) digital market, that can be read in the European Commission website, is to ensure a “safe and accountable online environment”. In fact, the Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC includes vital measures for that objective, while seeking to foster innovation, promote growth and competitiveness, and rebalance, in accordance to European values, the responsibility of internet users, online platforms and public authorities. These proposed regulations extend from intermediary services (network infrastructure, access providers, domain registrars) to hosting services, to online platforms (app stores, collaborative economy, and social media platforms) and to very large online platforms (reaching more than 10% of the 450 million citizens in the EU). The proposal applies to services provided to recipients that have their place of establishment in the EU, independently of the place of establishment of the providers of those services.
This new framework is the result of several years of work by stakeholders and legislators on how to update and improve the e-Commerce Directive (2000/31/EC), that regulated the Single Market regarding information society services and electronic commerce. For this new DSA, there was an extended look into questions related to misinformation, disinformation and conspiracy theories online, and in how to deal with the increased polarization and toxicity seen in the “digital public square”. Another objective of the new Act is to consolidate different EU legislation and regulatory practices, that have been spawning due to legitimate concerns regarding illegal speech, harmful content, radicalization, and extremism. Necessarily, a cornerstone for such an ambitious set of regulations must be the protection of fundamental rights: freedom of speech, and to express an opinion or receive and impart information without interference and harassment. These are freedoms, and rights, which are, at the core, liberal values essential in a liberal democracy that help good governance and to foster societal progress.
Proposed solutions in the new Digital Services Act
More granular analysis of the proposed DSA, shows some important measures to protect the freedoms presented above. Providers of intermediary services need to produce transparency reports with information on interaction with authorities, description of illegal content, time taken for removal of content, actions taken and the legal justification, or terms and conditions of the service, used for said actions. They also need to add to the report the “content moderation engaged in at the providers’ own initiative, including the number and type of measures taken that affect the availability, visibility and accessibility of information”, as the “recipients’ ability to provide information”, and the reason for the measures. Regarding online platforms, they also need to report information about measures that lead to the suspension of users from the platform due to “manifestly illegal content, the submission of manifestly unfounded notices and the submission of manifestly unfounded complaints”. Equally important, and crucial for an informed debate, especially in the political realm, those online platforms that display advertising, for example with political content, should have those ads easily identified as such (including transparency measures concerning algorithms used for recommendations), and that “the natural or legal person on whose behalf the advertisement is displayed” and that information “about the main parameters used to determine the recipient to whom the advertisement is displayed”. Concerning very large online platforms, some salient points refer to the need of these platforms to provide information about the main parameters used for recommendation systems. Equally, they need to create public repositories of the ads running on the platform, with information on the content of the add, if it was intended to be displayed to just one, or a group of users, and “if so, the main parameters used for that purpose”, and “where applicable, aggregate numbers for the group or groups of recipients to whom the advertisement was targeted specifically”.
What is at stake?
These are some examples of proposed measures that will have a (hopefully) positive effect in protecting freedom of speech online, particularly by clearly setting the rules in the “discussion arena”: what is illegal, what will be suspended from public view and in what fashion, and how to reclaim your speech when it does not qualify as illegal. Equally, it tries to solve the question of the “quality of information”, particularly in ads that appear in the platform’s users’ timelines, some of them obviously false, others misleading, others with underlying objectives of creating a “fake reality” that impedes a fruitful debate. This need ties up to other, the existence of “ideological bubbles”, or “echo chambers” that tend to extreme positions and hamper consensus. These regulations will also provide a better understanding of how the “digital machinery” works, namely platform architecture and algorithms’ functioning, and it will give clarity on how information will flow online, and how the user will interact with it.
With the DSA the EU also seeks to increase the access of crucial information by stakeholders, to better understand the effects, at the individual and collective level, of using these digital public forums, while some of them operate in counterproductive incentives, and while the mechanisms of political polarization online are increasingly more well known. It is fair to say that digital democracy is still recovering from the Cambridge Analytica scandal, and from the possibility that nefarious agents can (easily) disrupt elections in western democracies (France, USA, Netherlands, Germany, United Kingdom) with the dissemination of malicious content using online platforms. The quality of the experience of the Internet user when in a digital marketplace of ideas, being in societal and/or political debates, should be the best possible. This will increase his or her participation and contribution, necessary for the good functioning of democracy. In particular, when some democracies are in a such a fragile situation. It is well documented how social networks increase political polarization in the United States and around the world. In Brazil, millions of voters were subjected to massive campaigns of disinformation via WhatsApp, a messaging service owned by Facebook (now rebranded as Meta). African countries have limited or no systems for data protection, and due to a lack of net neutrality, social media giants like Facebook and Twitter are favoured, due to easy and cheap access to their platforms. In the Arabic world, Facebook has a very poor track-record in curbing hate speech and a subpar performance in removing illegal content, while repeatedly mislabelling mundane political speech as harmful material.
A (possible) analog and digital path forward
The DSA presents a roadmap, that can be used elsewhere, on how to regulate digital companies and services like the ones contemplated in the Act. A precedent already exists. The EU, by being one of the largest markets, affects regulatory policies outside its borders, and international companies that want to have their products available to the citizens of the Union need to adapt to rules and procedures codified by EU regulations. The creation of the General Data Protection Regulation, which codifies the collection, and treatment, of personal information of people, companies, and organizations that operate in the EU, created a so-called “Brussels effect”, that reshaped the digital realm globally. This assumes particular importance when thinking about any internet user, anywhere in the world, that is relishing his or her rights and liberties. Rights and liberties that were developed and won in the physical public squares and courtrooms, and that are “ground rules” for a positive engagement in public debates. With the migration of those societal and political debates to the digital world, there is a need to update those rules. That will assure that this powerful and wonderful tool to communicate and create information, does not become another way to deteriorate democracy, and to suppress some of the most cherished freedoms that anyone, from liberals to adherents of other (constructive) political ideologies should strive to protect.
Ricardo Silvestre is the International Officer of the Portuguese think tank Social Liberal Movement. He hosts the Liberal Europe Podcast and is the author of think pieces and scientific articles on the energy security of the European Union. Ricardo holds a PhD in Philosophy and a Master’s degree in International Relations.
Published by the European Liberal Forum. The opinions expressed in this publication are those of the author(s) and do not necessarily represent those of the European Liberal Forum.