The Digital Services Act of the EU a Closer Look

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. 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. Socal bots and click farms are stopped. It is impossible to be exhaustive in this review. The text is 310 pages. Lawyers, human rights and other civil society organizations should study the law for themselves.What’s in it? Lets have a closer look.

Preface and some definitions

Since 15 June 2022, the full text of the Digital Services Act, DSA, is available on the EP website as ‘Text of the provisional agreement on the digital services act’, with a download link. The primary aim of the DSA is establishing harmonisation for the regulation of digital services across Europe; as an EU Regulation and not a Directive, it is directly applicable in every member state. The DSA requires an enforcement regime that operates seamlessly to ensure equal application of the regulation throughout the Union.

The preamble is numbered by paragraph up to number (106a). Then the 74 numbered articles of the law are displayed. I limit myself to rules for social networks that are important to the users and also only deal with matters that are applicable in Belgium, because if a seat of one of the major platforms is located in a country of the EU, such as in Ireland and Luxembourg , it gets very complicated. You will find an elaborate series, where also the global impact on online platform governance enforcement is treated, on the website of the Center for Democracy and Technology: first, second and third.

The term “social networks” (Meta… and Tik Tok) or “internet platforms” (Apple App Store, Amazon… and Google) is used in the preamble as we use it in everyday language. In the legal texts, the term ‘intermediary services’ is often used as a container for both. So I will also sometimes use that term, when the law applies to both. VLOP, stands for ‘Very Large Online Platforms’, VLOSE, stands for ‘Very Large Online Search Engines’. This means in both cases, with more than 45 million users (see also article 25).

The definition of “illegal content” is as follows:

“In particular, that concept should be understood to refer to information, irrespective of its form, that under the applicable law is either itself illegal, such as illegal hate speech or terrorist content and unlawful discriminatory content, or that the applicable rules make illegal in view of the fact that it relates to activities that are illegal. Illustrative examples include the sharing of images depicting child sexual abuse, unlawful non-consensual sharing of private images, online stalking, the sale of noncompliant or counterfeit products, the sale of products or the provision of services in infringement of consumer protection law, the non-authorised use of copyright protected material, the illegal offer of accommodation services or illegal sale of live animals.” (paragraph 12)

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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.

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Stalking online is punishable, lynching online is not

Due to a weird twist in US law, online harassment by a group is not a crime. However, that will change from 2024. In this piece, we present Alice Marwick’s scientific research into this practice. We ourselves have analysed two Belgian cases of politically motivated network harassment. Each time, the victim was a woman and it was a right-wing male politician who inflamed his mob of followers.

The difference between online stalking and online lynching

Stalking online is punishable, if the moderation of the social media site is willing to cooperate. If it concerns physical threats, inciting others to use violence, sexual harassment, racist and/or discriminatory statements, disclosing sensitive personal information, spreading false rumors, hate speech or identity theft, all criminal offenses, you can report it . You can have an online post that clearly violates “Community Guidelines” deleted.

Social network sites have poorly paid staff for that. But having to report again and again is exhausting and demoralizing, so you might want to put an end to it for good. You can sue your stalker in court, but for that you need the details of your stalker because he usually operates anonymously. To find out the name and e-mail of the stalker, it is not enough to refer to that one post. You must be able to demonstrate that one and the same troll is constantly violating the ‘Community Guidelines’. If you can, you may get the necessary information from the moderation. And only then you can take further legal action if you have the resources to do so.

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