The Digital Services Act - soon in your country
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What is the Digital Services Act, what changes for users and what is the impact on digital rights?
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The Digital Services Act - soon in your country
- 1. DIGITAL SERVICES ACT …coming soon in your country Kirsten Fiedler, Senior Policy Advisor, EU Parlament
- 2. Interactive website https://afuturewithoutmanipulation.eu/ Greens/EFA ideal law: mycontentmyrights.eu/
- 3. DEVELOPMENT OF DIGITAL SERVICES A FEW BIG ONES MANY SMALL ONES EU-Kommission via Dealroom database: ca. 10.000 are based in the EU , of which 96 % SMEs and around half micro enterprises. Dealroom database,infra, S.24
- 4. DEVELOPMENT OF DIGITAL SERVICES E-Commerce Directice (2000): Rules for all services of the information society Digital Services Act: Liability rules (=ECD) Notice and complaint mechanisms Due diligence obligations Harmonised enforcement (Digital Services Coordinators+ EU -Commission)
- 5. GOALS 1. To make it easier to offer cross-border digital services and to create uniform rules for the European internal market. 2. Make the internet and digital services a safer place where national law applies and everyone in the EU can freely exercise their fundamental rights, in particular their right to freedom of expression and information. 3. Combat disinformation and hate speech. The functioning of platforms that damage democratic societies are being considered.
- 6. SCOPE The DSA applies to digital services offered to users located in the EU, regardless of the place of establishment of the services themselves. It applies with tiered rules to intermediary services hosting services online platforms Very Large Online Platforms (VLOPs) and Search Engines (VLOSEs)
- 7. SCOPE Intermediary services Hosting services Online platforms Very large online platforms and search engines (VLOPs and VLOSEs)
- 9. Liability rules Reporting Illegal Content and Remedial Procedures Transparency reports for online platforms Ban on manipulative practices (dark patterns) Restrictions on behavioral advertising Exceptions for small and medium-sized companies VLOPs/VLOSEs: Risk assessment and mitigation Audits (independent verification) Recommender systems Advertising archives Data access for researchers and CSOs Enforcement: based on country of origin principle The EU Commission is responsible for VLOPs Fines of up to 6% of global annual sales CONTENTS
- 10. LIABILITY Services are not liable for user-generated content until they have actual knowledge of it and then "act expeditiously" to remove content (Articles 4-6) General monitoring (Art. 8): “No general obligation to monitor the information which providers of intermediary services transmit or store, nor actively to seek facts or circumstances indicating illegal activity shall be imposed on those providers“
- 11. ORDERS Orders to take action against illegal content and information orders from authorities (Articles 9-10): Harmonised and clear rules. In future, orders from the judicial and administrative authorities of the Member States against illegal content and requests for information from all online services must be acted on expeditiously.
- 12. POINTS OF CONTACT & LEGAL REPRESENTATIVES Services designate a single point of contact so that they can communicate electronically directly with users, authorities and the Commission (Articles 11-12) Services that do not have an establishment in the EU appoint a legal or natural person to act as their legal representative (Article 13).
- 13. TERMS & CONDITIONS and TRANSPARENCY T&Cs and community standards that establish rules for content moderation must be applied in an objective and non-arbitrary way in the future (Article 14). Services are obliged to respect the fundamental rights of their users when applying their terms and conditions (Article 14). Annual accountability for content moderation must be provided in machine-readable transparency reports (Article 15). Very large platforms must also disclose how many staff are used for content moderation and how the staff is trained and supported (Article 42).
- 14. NOTICES AND COMPLAINTS Europe-wide harmonised notification procedures to quickly and easily report potentially illegal content on the Internet (Article 16). Users finally get more rights via: Justification and complaints procedures at the platforms (Articles 17 and 20) External dispute resolution procedures (Art. 21) so that users can defend themselves against unlawful deletions and account blocks.
- 15. ONLINE MARKETPLACES Illegal activities on online marketplaces are frequently uncovered, especially when it comes to selling dangerous products. Too often the identity of the providers is not verified. DSA: Dedicated chapter for marketplaces (Section 4) Traceability of traders on platforms (duty to provide information: name, contact details, registration numbers, etc., Art. 29-32) Online marketplaces must use their "best efforts" to check whether the information has been provided reliably and completely
- 16. RECOMMENDER SYSTEMS Since the revelations by Facebook whistleblower Frances Haugen, we have evidence of the negative impact of online platforms' recommendER systems: Algorithms amplify the distribution of polarising content. DSA: Online platforms must explain how their recommendation systems work, why certain content is displayed and how users can change this (Article 27). Very large platforms must also offer an option to view the content that is not personalized and not based on profiling (Article 38).
- 17. MANIPULATIVE PRACTICES "Dark Patterns" push users in unfair and manipulative manner to make decisions every day, such as: Cookie banners that hide the option to refuse cookies. Repeated harassment after users have already opted out. Hiding "unsubscribe" options or how to close an account Article 25, DSA: Websites and buttons must be designed fairly so that users have a real choice in the future. But: Practices already covered by existing consumer protection and data protection legislation are not included in this prohibition. But: no binding list of practices in the article, as provided for in the parliamentary text. The EU Commission can publish guidelines to explain specific prohibited practices.
- 18. SURVEILLANCE ADVERTISING Prohibition of advertising based on profiling which uses sensitive data - e.g. political and sexual orientation, trade union membership, religion… (Article 26(3)) Prohibition of advertising based on profiling using personal data of minors (Article 28(2))
- 19. RULES FOR VLOPs, 45mio USERS Risk assessment and mitigation (Art. 34-35) Recommendation systems with alternative option not based on profiling (Art. 27/38) Crisis management (Art. 36) Audits (independent review, Art. 37) Ad archives for VLOPs (Article 39) Access to platform data for researchers and civil society (Art.40) VLOPs supervisory fee (Article 43)
- 20. RISK ASSESSMENT & MITIGATION VLOPs are required to conduct annual risk assessments (Article 34): how design and algorithmic systems impact: fundamental rights, human dignity, data protection, diversity of opinion and media, non-discrimination, youth protection and consumer protection? the public discourse and elections, on gender- specific violence or on the mental and physical health of the users? VLOPs are required to address the identified risks (Article 35).
- 21. CRISIS MANAGEMENT The EU Commission can, on the recommendation of the DSA Board (consisting of the 27 MS), require actions from VLOPs, e.g. carry out specific risk analyses or take measures This crisis response must be limited in time (max. 3 months) The Commission's decision must be made public
- 22. ACCESS TO PLATFORM DATA Access to platform data for researchers and civil society has been secured (Article 40). VLOPs and VLOSEs have to explain the design, logic and functioning of their algorithmic systems, including their recommendation systems, at the request of the authorities in the MS or the Commission.
- 23. ENFORCEMENT National Level - Digital Service Coordinators (DSCs) • Independent Authorities Direct Oversight and Enforcement Coordination with other national authorities • Coordination with other national authorities EU Board for Digital Services (Art. 61) • Ad hoc independent advisory board • Composition from DSCs • Presidency of the EU Commission • Advises DSCs and com, proposes EU Commission • Direct oversight and enforcement for VLOPs • Advises on cross- border cases • Acts upon DSC request
- 24. ENFORCEMENT We learned from the GDPR: Avoiding an “enforcement bottleneck” Regulators have strong enforcement measures at their disposal (Articles 49 ff.) Penalties of up to 6% of global sales (Article 52) Periodic fines of up to 5% may be imposed for persistent violations (Art. 52) (Temporary) measures to stop the violation can be ordered or, in special situations, the service can even be completely blocked (Article 70). EU Commission has centralized enforcement power for VLOPs. VLOPs share the financial burden of their own supervision through fees.
- 25. ENFORCEMENT IN GERMANY The draft law to implement the DSA in Germany published beg. August 2023: designates the BNetzA as the national DSC, plus tasks for Federal Agency for the Protection of Children and Young People in the Media and the Data Protection Authority (5 new FTE). NetzDG will be fully replaced by the DSA. In Ireland, the DSC is the Coimisiún na Meán (a new Media Commission) In France, ARCOM will be the "coordinateur pour les services numériques" (CSN)
- 26. NEXT UP Entered into force on Nov.22 Applies for VLOPs since 25 August 2023, applies to everyone from 17 February 2024 In Feb. 22: User numbers published, COM then named 19 services as VLOP/VLOSE. Risk reports were due 28/08-4/9 (4 months after designation), but not published Delegated Act on Audits in Q3 (September) Template for transparency reports (by December) Delegated Act on Art. 40, data access (planned 1st quarter 2024) Whistleblowing platform (similar to FISMA tool)
- 27. tl;dr Platforms are not liable for the opinions of their users, but for their own actions. Systemic risks from the business model of surveillance advertising and interaction-based recommendations are identified and addressed. BUT Profiling for recommendation systems not restricted at all. Prohibiting advertising profiling and manipulative practices does not go far enough. Systemic risks are researched but not eliminated immediately. The DSA gives us tools, but it won't change the Internet from one day to the next.
- 28. alexandrageese.eu Newsletter email: kirsten.fiedler@ep.europa.eu mastodon: @kik1@chaos.social QUESTIONS ?
Notas do Editor
- K.F. - Defending and promoting digital rights for over 15 years, started with own blog, articles atNetzpolitik.org 8 years at Since EU elections 2019 Greens/EFA Mainly on digital issues, IMCO
- Alexandra shadow rap on DSA Work of Greens/EFA since 2019 Consultation and ideal version of law before it came out .- my content my rights Interactive website on issues
- DSA WAS ADOPTED IN JULY 2022 – IS APPLICABLE FOR VLOPS SINCE 25/8 AND GENERALLY APPLICABLE for all other sizes of services on 17/2/24, so in your country, unless you’re from Ireland Why do we need the DSA: Landscape of digital services has changed dramatically in the past 10 years GAFAM The DSA is often dubbed the EU’s law against big tech or the EU’s platform regulation –or the new EU legislation against hate online. IT IS THE FIRST TIME in digital policy making, that the systemic risks of very big platforms are in the focus, and that there is acknowledgement that the business model is the problem – instead of just trying to tackle the symptoms or individual pieces of illegal content. The DSA tries to tackle the business model of advertising companies Google and Meta – also jointly with the DMA – not sufficient but first step.
- 3. The ECD was outdated, time to adapt to new landscape. Copy paste of liability regime But in addition many other rules, especially for big ones
- Liability rules from 2000
- National judicial and administrative authorities can issue orders to notify services of the presence of illegal content They have to meet a series of criteria. In particular, they must contain the reason why the content is illegal and information on the territorial scope of the order Administrative Authorities: Potential for arbitrariness and abuse. In contrast to judicial orders, the police, for example, has no legal authority to interpret which content is illegal and which is not. In some cases the illegality can be obvious, but sometimes it can also limit freedom of expression (see copyright authority Hadopi in France). We fought that orders should only come from independent judicial bodies, but without a majority.
- the Greens have had several successes with the terms and conditions and the transparency obligations, because: All services must be transparent about what restrictions they have on the content on their networks, including how algorithms are used. Great success: Services are obliged to respect the basic rights of their users - but let's see how this works in practice. VLOPs: Transparency reports on staff - click workers in India, but also here in Europe, the working conditions are precarious: morederators receive hardly any psychological support, although they have to view and delete tens of thousands of posts, pictures and videos full of violence and hatred every day. And they are poorly paid. DSA not the place to change that but at least Big Tech will disclose information about this in the transparency reports.
- In the DSA we were able to avoid a deadline such as a 24-hour deletion period (like NEtzDG). This would have meant that we would have created a de facto general monitoring obligation and online services might be forced to use filters in order to quickly remove content from the network and avoid liability. Especially for smaller services that would be a Pb. Achievements: No obligation for the reporting person to identify themselves. The reporting procedure must be close to the content (see Fb after NetzDG - the NetzDG message hidden deep in the system after several clicks) The service must send a statement of reason to the user who uploaded the content. This also applies to all restrictions on the visibility of a post that violates the General Terms and Conditions, even if it's just a "downgrade", e.g. shadow banning. Services must provide a complaints mechanism, but there is an exception for micro and small businesses.
- Separate chapter for Online marketplaces, consumer protection orgs were pushing for this
- Rec systems such as next up on YT, recommended groups on FB, content of other users on Insta etc
- Article 25 on so-called Dark Patterns, which we really wanted and was very strong in the EP text: Providers of online platforms must not design, organize or operate their online interfaces in such a way that users are deceived, manipulated or significantly impaired or hindered in their ability to make free and informed decisions. HOWEVER: badly written, totally watered down in the last trilogue that went until 2am, enforcement becomes a big question mark. Guidance on this from the Commission, but not a priority. EU COM Digital Fairness - Fitness test for consumer protection rules, is expected in 2024 - for the next mandate. Consumer advocates want to enforce stricter rules and a ban on dark patterns underneath.
- Alexandra's main focus - putting an end to surveillance advertising. Online advertising is one of the financial foundations of the internet. Ad tracking happens every second we're online. Our behavior, likes, purchases, etc. are collected and evaluated. Then tailor-made advertising played out. large platforms create comprehensive data profiles about people that allow manipulation and control of entire population groups. This is the current business model, which works on the principle of surveillance capitalism. End result not as strong as we wanted. The EP text was significantly better than what came out at the end of the negotiations with the Council. But: Success is that we have something in it at all, that wasn't clear at the beginning of the DSA, because instrument gg illegal content. Good study a few months ago from the Com, we hope for further legislation in the coming mandate
- explain list. Big green success: our amendment for a supervisory fee for VLOPs did not make it into the text of the eps, but the COM suddenly found this very good during the trilogue and therefore it has become part of the final text. There is a similar mechanism at the European Central Bank, which collects a supervisory fee from all supervised banks.
- The negative impact and systemic risks that very large online platforms pose not only to our rights and freedoms but also to our society and democracy more broadly are recognized in the DSA.
- In exceptional situations (e.g. Ukraine war) special measures can be taken quickly (Article 36). Kom wanted an article on crisis management for exceptional circumstances at the last second, and only for VLOPs This was in response to the gg Sputnik and Russia Today lockdown measures shortly after the invasion of Ukraine. We were very skeptical because of the potential for abuse: since COM cannot make an independent judicial decision for all MS - there is a risk of restrictions on freedom of expression.
- Very large online platforms are playing an increasingly important role in society because they use their enormous power to influence opinions and public discourse. Access to data is important to hold platforms accountable, to allow independent oversight and to understand how these platforms work. So in the future you can research how and if Istagram drives young girls into anorexia. One can explore how fast disinfo spreads and why. Independent oversight to keep VLOPs accountable. BUT exceptions: if platforms do not have the required data and also if security or trade secrets are at risk.
- Very good that this goes ahead now, because we are worried that the supervision will be delayed. DPA in Germany 5 new employees, to monitor the prohibition on targeted ads. Germany also wants to create an advisory board for the DSC. That we have strong DSCs is particularly important with regard to the EU elections.
- Alibaba AliExpress, Amazon, App Store of Apple, Booking.com, Facebook, Google Play, Google Maps, Google Shopping, Instagram, LinkedIn, Pinterest, Snapchat, TikTok, Twitter, Wikipedia, YouTube and Zalando. VLOSEs : Bing und Google Search. Zalando and Amazon objected to the designation, meaning they put in question the whole validity of the DSA. COM told us: priority is now child protection (Art 28) and electoral integrity (risk assessments)
- Recommendation systems: sensitive data and other personal data are still allowed, i.e. in line with GDPR. But we would have liked to see more Nevertheless: The DSA rules for VLOPs will affect attention-based ranking, which fills the pockets of the corporations with disinformation, hate and hate speech Also: we wanted a complete ban on surveillance advertising.