The Digital Services Act of the EU and the Human Rights Alliance

The virtual space of the online platforms will be turned upside down by the Digital Services Act (DSA). Once the law is fully rolled out, by the beginning of 2024, social networks will never be the same as before. DSA promises that illegal content, such as hate speech, will be removed from the internet faster. How did the law come about? The roles of the Commission, the EP and the Council. The lobbies that were their own biggest enemy themselves. The Human Rights Alliance that pushed the EP. And finally the press that did a lousy job.

What is the meaning of DSA and DMA

And did you know? The Act is already there, and some things can already be applied from November this year. No Belgian law is required for implementation. The law is immediately valid throughout the EU. On 5 July 2022, the proposals of the Commission for the Digital Services Act, were approved by the European Parliament by an overwhelming majority, 539 votes in favour, 54 against. The Council and European Parliament made provisional agreement for making the internet a safer space for European citizens. The Internal Market Committee endorses the agreement on Digital Services Act with 36 votes in favour, 5 against and one abstention as to this press release. On the same date, the Digital Markets Act (DMA) was approved, with 588 votes in favor and only 11 votes against. The at first sight technical requirement of interoperability of the platforms is part of it. And the impact will also be huge. But now it’s all about DSA first and foremost.

DSA promises that illegal content, such as hate speech, will be removed from the internet faster. The basic principle is: what is illegal offline must also be illegal online. Internet giants such as Meta will also have to allow inspection of the algorithms that determine which messages a user sees from Facebook or Instagram. DSA provides citizens with tools to monitor the ‘Big Tech’. The new regulation aims to prevent violations of our rights, such as in the Cambridge Analytica scandal when the company used Facebook’s laxity to collect data on 87 million people to influence the 2016 US presidential election.

However, there is still mistrust among citizens. The partial failure of the EU’s General Data Protection Regulation, GDPR, internationally acclaimed as an example of privacy protection, prompts vigilance. The impact of GDPR was mitigated by the relative lack of enforcement. The main reason for this was the dysfunction of some of the data protection authorities DPAs. The EU had determined that GDPR had to be enacted by national governments and that a national DPA – better known in Belgium as the Privacy Commission – had to monitor its application. And that was the end of it, or so they thought within the EU at the time. But that’s where it went wrong. In Belgium, due to a series of lay-offs and political meddling, the authority of the GBA has deteriorated and even its independence is under threat. The Commission has now learned from this. She opted for a layered enforcement regime.

But there is much more. An approach to social media, based on human rights, is urgently needed. The ‘Digital Services Act Human Rights Alliance’, DSAHRA, an alliance of twenty-seven civil society organizations that lobbies at the EU. On 21 October 2021, the Alliance’s published a first text. It reveals some significant shortcomings in the Commission’s proposal. That text in turn inspired the European Parliament to make a number of additions to the proposal of the Commission. All this requires careful analysis.

The EU learned from the experience with GDPR

Complaints are made about the complex construction of the EU’s three governing bodies, the slow pace of business and the lack of citizen participation. The fact that the European Parliament has no right of initiative to make new laws/regulations or to recall existing bad laws/regulations is indeed a serious shortcoming. The Commission is also not an elected body, it is appointed for a period of four years by the countries of the Council. The individual ministers must all get a majority in the EP where they have to defend their appointment. So the Commission is currently still proposing the laws/regulations.

But this time she did her homework. On February 19, 2020, she published a paper outlining her vision for Europe’s digital future and on June 2, 2020, she launched a public consultation on the key legislative package on digital services. Executive Vice-President Margrethe Vestager explains:

“The Internet offers citizens and businesses enormous opportunities. However, working online and interacting online also involve risks. What we are doing now is asking interested citizens and stakeholders for their views on how to put in place a modern legislative framework for digital services and online platforms in the EU. Many questions concern citizens’ everyday lives and we are committed to ensuring a secure digital future with room for innovation.”

This eventually resulted in a proposition from the Commission. It goes without saying that the appointment of Verstager who succeeded Nelie Kroes was a relief. Kroes was controversial from the start of her appointment. Even when she left the Commission, she did not keep the agreements. In 2015 and 2016, she secretly lobbied for the American company Uber, although the European Commission had explicitly banned her from taking a position with the company.

The European Parliament has played a very active role in improving the digital services law. Because without a majority in Parliament, it will not be accepted. All reports, advice and amendments can be found via this link. With this search you will find all texts with amendments. Have all amendments passed? No, but the most important have. And this is a different story than what you see in Belgian politics, where opposition proposals are ‘carrément’ voted down by the majority, often only to take them out a year later and pretend it is their own proposal. No wonder that people then complain about the decline of Belgian politics.

Here is an example of a text with EP amendments. Note Nicola Procaccini’s Amendment 131 in the text. This amendment proposes not to remove user posts that are not manifestly illegal. In other words, a bare nipple should be possible on Facebook and Instagram, within the EU. Meta has no right to remove it. That’s censorship. But there is also a lot of political censorship on online platforms at the moment. And that’s much worse. For example, the reports of the murder of Al Jazeera journalist Abu Akleh in Palestine – massively reported from Israel – quickly disappeared. This suppression of free speech is a worldwide phenomenon. Marginalized and oppressed communities are particularly affected.

Finally, there is the Council of the European Union (the Council of Ministers), which has the last word. You can find more information about the working method and the decision-making procedure via this link. Then there is the rotating presidency of the Council, but that has become more of an organizing function since 2009 when it was decided to appoint a permanent president of the Council, just like for the Commission, currently Ursula von der Leyen and Charles Michel. During the period of intense negotiations between Parliament and Council, the rotating presidency was held by France with President Macron. In general you can say that the EU has a very open policy with regard to information provision. Everything can be found with a little effort.

The situation is different with corporate lobby groups. The EU transparency register counted 13.366 inscriptions at the end of 2021. Research shows that 75% of the lobby meetings of Commissioners and high-ranking bureaucrats are with big business lobbyists (Olivier Hoedeman, Sampol, Januari 2020). What they do there, we mainly have to guess. In retrospect, it sometimes appears from leaks that they would prefer to draw up the laws themselves, but you don’t get to know much about it. You can only see it at the end of the ride, if the final law/regulation, approved by the Council, deviates substantially from the original Commission proposal. But is this deviation due to the intervention of the EP, who wanted to sharpen things up a bit, or were it the industry lobbyists who managed to weaken strict regulations? The first happened at DSA, and the lobby group that brought it about did it ‘in plain sight’.

The internet giants have failed gain the upper hand. And that is in large part due to the active role of the non-profit lobby group: ‘Digital Services Act Human Rights Alliance’. And while this alliance is as open as a book, they are treated condescending by the mainstream media. As we mentioned in the introduction, the non-profits also lobby, but as you will see, there is another big difference with the ‘big business’, which lobbies mainly at the Commission, the DSAHRA lobbies mainly at the European Parliament.

The civil society organizations took a stand united

The DSAHRA has united around the principle that the Digital Services Act should be approached with human rights as the central guideline. The administrators of the internet platforms must – possibly by force – respect human rights. To make this more concrete, an example from the joint statement the alliance published on October 21, 2022, advising the European Parliament to stand firm on the changes it made to the Commission’s original bill. A verbatim quote:

“We strongly recommend negotiating teams to preserve Article 7 (1a) as proposed by the European Parliament, which prohibits legally mandated automated decision making to be imposed on online platforms. We urge negotiators to uphold safeguards for the right of users to safe private communication as currently proposed and defended by the European Parliament. It is important to make sure that no provision in the DSA, including the measures on risk mitigation, should lead to a legal or de-facto obligation to monitor users’ communication and speech.”

Amendments on DSA approved by the EP plenary can be found here.

It is impossible to describe all twenty-seven organizations here. I have selected eight of them that together form an international biotope. I briefly describe them with their most important contribution. Just because they all base themselves on human rights, doesn’t mean they all do the same thing. Sometimes they overlap a bit, but these eight are mainly complementary. In other words, they are all needed and they don’t get in each other’s way. On the contrary, they can work together perfectly. They also set up all kinds of projects together. Working in alliance is therefore logic itself for them. And that’s their strength, that they take a stand united, while Apple and Meta are competing each other, for example. They prefer to constantly bump into each other. Here are the eight in alphabetical order.

Courtesy European Digital Rights EDRi

Access Now, Acess Now (2009) has a team of more than 100 staff members. You’ll find a lot of press releases about DSA here.

Association for Progressive Communication, APC (1987). APC has evoluated from a pioneering international organisation based on the grass-root movements and NGO’s to a well established organisation with Category One Consultative Status to the United Nations Economic and Social Council (1995). This is important for the worldwide dissemination of the principles laid down in the DSA, currently only valid for the EU. APC’s headquarters are currently located in South Africa. The APC network is a member network, it currently has 62 organizations. It has 29 employees operating in 74 countries.

Center for Democracy&Technology, CDT (1994) is an information-intensive organization with a very broad focus on democracy, the digital world, technology and the internet. Based in Washington, it has a team of 37 employees. In the US, they take on the role of promoting a version of the DSA for North America. Here is their overview of the approved Digital Services Act.

European Center for Not-for-Profit Law, ECNL (2003), specializes in legal support. Legal advisors are indispensable for actions, reading and interpreting legislative proposals. ECNL contributed to the formulation of the EU Recommendation CM/Rec(2020)1 on the impact of algorithmic systems on digital human rights. Not unimportant in this context. The team of 17 has expertise in civil liberties, technology and artificial intelligence, security, European policy, climate action and all things public space.

Electronic Frontier Foundation, EFF (1990), has been working on the digital road since 1990. Technically very strong. Main themes: open internet, creativity and innovation, freedom of expression, surveillance and human rights, security and privacy. The EFF policy regarding DSA can be downloaded here.

European Digital Rights, EDRi, (2002), is the largest European network of organizations defending digital rights with currently 47 full members. Of course, the small team of 15 is very active in the promotion of DSA. An evaluation of the final result achieved after additions by the EP and after the agreement between the EP and the Council can be read here. Many documents about DSA and DMA can be found in the Digital Services Act / Digital Markets Act: Document pool.

Global Forum for Media Development, GFMD (2006), is the largest global community of media development and journalism organizations. Through collaboration, coordination and collective action, the network creates, promotes and delivers policies to support journalism as a public good. List of participating organizations, here. The GFMD also supports the fight against harassment of journalists through Strategic Lawsuits Against Public Participation, SLAPP. This battle is being waged by the CASE coalition.

Mnemonic, Mnemonic (2014), is the smallest organization of the eight. And yet indispensable. Their job mainly consists of documenting conflicts and archiving that information. They do this to prevent potential evidence from being lost. For example, they discovered that in its moderation of texts in the Arabic language, Meta misinterprets 77% of them as terrorist. Both Reuters and Politico reported on this. The lack of sufficient moderators for small language areas had catastrophic consequences. The conflict in Myanmar (2021 – 2022) is the most vengeful example of this. The army generals could call for pogroms and arson via Facebook, without anyone noticing. The ACLED estimated that a total of about 23,521 people had been killed by July 29, 2022.

The Flemish Press hearing the bells but not knowing where the clapper hung

The time journalists spend following up on big tech could be more usefully spent exploring the nonprofit sector. However, that information is readily available. The Union of International Associations publishes a comprehensive yearbook of all NGOs with their activities worldwide. But journalists do sit through a three-hour interview with Mark Zükckerberg, of which one of the colleagues then remarks that it was mainly a promo talk from the big boss of Meta, and that they didn’t really hear anything new. See Twitter thread one and two.

In the Flemish Press about DSA, it was almost unanimously claimed that Macron accelerated the negotiations on DSA and DMA because he wanted to win a trophy during his presidency. Since 2011, criticism of online platforms has been getting louder in academia. Wasn’t it about time to do something about it? But you read little about it in the mainstream media. Meanwhile, the situation on platforms such as Facebook and Twitter has gotten even further out of hand. Now Tik Tok is also going the same way. Targeted advertising to young people, which makes fun of Belgian regulations. So it is five to twelve. What do we read in De Tijd and De Standaard (my translation from Dutch):

“Negotiations took place at breakneck speed, led by France, which will chair the European Councils of Ministers until the summer. It was a trophy that Paris was determined to win before the end of President Emmanuel Macron’s mandate. The final negotiation phase lasted 16 hours.”

Every politician likes to be in the spotlight, but a trophy? In a joint statement from the three bodies of the EU at the end of 2021, you can read that they wanted to speed up. Isn’t Macron’s influence seriously overestimated here? If you want to interpret it politically, on the other hand, you can argue that Macron felt the hot breath of two far-right parties during his re-election. If so, he can only benefit from a solid Digital Services Act, like everyone else, except of course extreme right-wing groups and parties, who live on polarization.

And there’s something very specific in France, where they had an interactive information and communication service since 1977, Minitel, delivered free of charge with a telephone line, long before the WWW emerged in 1989. By the end of 1999, 25 million of the 60 million French access to a Minitel device. Despite the rise of the internet, in 2009 10 million connections were made to the network every month. So the French have experience with digital communication, no wonder they didn’t like the chaos on the Web.

Picture published in the paper De Standaard

Sometimes journalists are so careless that it gets annoying. Carefully read the following extract from an article published on April 26, 2022 (my translation from Dutch):

“It has been remarkably quiet since the European negotiators reached an agreement on Saturday morning. ‘We cannot draw any conclusions yet,’ says Eliska Pirkova, Europe policy analyst at the Access Now organization, which stands up for digital rights. ‘We have no text yet. The European Parliament had added some provisions in its version of the DSA, but some of those ideas have been scrapped, others may have been watered down in the race – under French pressure – to align Parliament, Commission and European Council. A much-cited provision – the ban on using sensitive data such as race, sexual orientation and political opinion for personalized advertising – has remained intact but may have been watered down to allow for circumvention, as has the provision banning advertising aimed at minors. It is not clear how this can be applied without everyone having to constantly identify themselves on the internet.”

The quote begins with the journalist’s statement that it is ‘remarkably quiet’. Then Eliska Pirkova replies that she has no lyrics yet, so can’t comment. The press mosquito on duty then answers the questions he asks himself. But what really shows complete incompetence is his statement: “A much-cited provision – the ban on using sensitive data such as race, sexual orientation and political opinion for personalized advertising – has remained intact but may have been watered down to allow for circumvention…”, which is completely irrelevant. The categories used for personalized advertising were not defined in DSA, because they were already fixed since 2016, see Article 9(1) of Regulation (EU) 2016/679, which will also be referred to in the final DSA law article. But it feeds the negative connotation that the general public has about the EU, the supposed regulation nonsense. This journalist just makes sure it sticks, while in this case rules were urgent. And by the way, Grindr has already been fined $6.2 million in a dispute filed by the Norwegian Consumer Council, based on that kin of legislation. There is absolutely no question of watering down the proposal. GDPR does work if the government does its job. Norway is not a member of the EU, but works closely with it.

Eliska Pirkova and her organization Access Now are suspected without any reason as wanting to cover up things. While it’s just the opposite of what they do all the time, critically defending digital rights, but with well-founded arguments. Access Now is an organization with a team of more than 100 people, almost as many as that journalist’s newspaper in total, to bring all the news from around the world on every imaginable topic on a daily basis. Quelle blague, one would say in French. Here you can read what Eliska Pirkova actually wrote about this on April 26, 2022 and that is something completely different from what is suggested by the journalist. According to her, the result of the use of sensitive data is just the opposite of what the journalist claims. The quote:

“A ban on the use of sensitive personal data for the presentation of ads online was a positive addition where the DSA complements the General Data Protection Regulation (GDPR). The GDPR has strict rules concerning the processing of sensitive data and, although it is unclear how sensitive data could have ever been legally used for ads, the ban agreed under the DSA would put an end to this legal debate and this invasive practice.”

It is justified that the media, being the ‘fourth power’, critically analyze what is happening within the EU. It is at times a Weberian bureaucracy. And things go wrong, for example Frontex that closed its eyes to illegal ‘refoulement’ by the Greek police of asylum seekers. The director of Frontex has since resigned. But the facts brought to light must be correct. The EU is under fire from both left-wing and right-wing politicians. We have seen what disinformation can cause with Brexit. We cannot afford those kinds of mistakes.