The DSA should pave the way for systemic change

Today, 5 July, is a victorious day for human rights online as we embark on the next stage in our journey – real alternatives to the currently dominant surveillance business model. The European Parliament’s approval of the Digital Services Act (DSA) will bring many opportunities to limit the huge power Big Tech companies like Google, Meta (Facebook) and Amazon have over people and democracies. However, this regulation is only the first step in ensuring people’s rights online are protected, more work is needed for a better internet. Now, it is imperative that we see strong enforcement by regulatory authorities that will ensure the high human rights standards the new rules promise.

By EDRi · July 5, 2022

Why is this vote important for people?

On 5 July, the European Parliament approved the DSA proposal with 539 votes in favour. These new rules set a milestone in internet history as they aim to put people in control of what they see online and are not limited by Big Tech’s commercial choices and state arbitrariness.

“The European Union has done a good job in putting the very first democratic safeguards to tackle illegal content and online disinformation. The DSA offers the much-needed tools to enforce platform accountability, but we will continue to call and work for regulatory alternatives to address the currently dominant surveillance business model.” ― Sebastian Becker Castellaro, Policy Advisor, EDRi

Today’s vote marks a big victory for digital rights as we will no longer have to trust Big Tech to make changes based on their good will, leaving people as the second effect of companies’ profit. The DSA Regulation, if implemented right, can guarantee transparency, and accountability and that people’s interests are at the core of the solutions.

The achievements of civil society in the DSA text

EDRi and other civil society organisations have been continuously calling on EU legislators to learn from past mistakes like the Copyright Directive and avoid creating general monitoring obligations for online platforms. The final DSA Regulation proposes effective appeals and redress mechanisms to allow users to flag potentially illegal online content. The response process will be transparent and without the pressure of facing immediate legal liability at the expense of the rule of law.

Given the overall lack of transparency in online advertising and algorithmic development and use, it is incredibly challenging for individuals to exercise their digital rights. That’s why EDRi welcomes the DSA’s attempt to enable a real transformation of the online advertising industry – away from cheating and spying on users and towards a safer, privacy-respecting ad ecosystem. However, the approved Regulation fails to fully dismantle the surveillance-ads business model, something that would bring a visible positive change for people that can put an end to one of the root causes of online harms.

The DSA can only be the starting point for more profound change

While the DSA could serve as a global benchmark for how to regulate today’s hyper-centralised platform economy while also protecting people’s rights online, it is only the first step. The approved text fails to ensure complete regulation over some of the most harmful practices online.

 “It is disappointing that the notice-and-action mechanism does not contain stronger freedom of expression safeguards and will likely lead to over-removal of legal content as hosting providers will seek to limit their liability risks.” ― Chantal Joris, Legal Officer at EDRi member ARTICLE 19

For example, the ban on the use of sensitive personal data for targeted advertising only applies to platforms showing ads to their own users. This means that no action will be taken against the number of ad networks on common websites, which will continue to extract people’s data. Similarly, the text introduces a weak ban on deceptive interface designs as it excludes the most pervasive ones: cookie and tracking banners.

The new Crisis Response Mechanism (CRM) added last-minute to the DSA has been slightly improved as it can be invoked by the European Commission only through a recommendation of the European Board for Digital Services. And the given powers can last for a period of three months. This improvement came as a result of a strong advocacy effort from EDRi and many other civil society organisations, urging the European Parliament to not allow temporary crises to lead to permanent infrastructures of state control. However, the CRM clause remains rather broad and can be extended unilaterally at any time.

The DSA has also failed to ensure binding measures that promote and advance accessibility. The text suggests that accessibility is a mere “code of conduct”, leaving the needs of people with disabilities to profit-driven companies who evidently prefer to put their interests first. This goes against the EU’s legal coherence for digital accessibility and puts on the margins a big group of people who rely on the internet the exercise their fundamental rights and pursue their life, work, and interests.

“The ban on advertising based on profiling and using special categories of sensitive data together twitch he measures combating dark patterns are important turning points that open the pathway to effectively tackle surveillance-based advertisement.” ― Eliska Pirkova, Global freedom of expression lead, EDRi member Access Now

What’s next?

Once the text is voted, the official text is expected to be published in November 2022 and enter into force on the twentieth day after the publication. Moving forward, EDRi will work to ensure that the focus is on the best implementation possible of the DSA at a national level.