Digital Services Act: what we learned about tackling the power of digital platforms

Over a year ago, EDRi started engaging on the reform of the e-Commerce Directive on platform liability. Now called the Digital Services Act (DSA), it is an ambitious yet undefined piece of EU legislation on platform regulation.

Why is this future piece of legislation important for people and democracy in Europe and beyond? And how successful have we been in enabling a stronger human rights led legislation so far?

From moderating online content to preserving democracy

From February 2019, EDRi met with academics, civil society organisations and representatives of the European Commission and the Parliament to better understand what type of reform was envisaged for the e-Commerce Directive. Based on these conversations, EDRi put together a working group promoting discussions with members. This led to the publication of a series of blogposts explaining our recommendations for the reform. Initially, we had envisaged that the reform would regulate illegal content online following the European Commission previous approach regarding ‘terrorist’ content or Copyright infringements.

In June 2019, we wondered whether the “review of the E-Commerce Directive [would] open Pandora’s box and become one of this decade’s biggest threats to citizens’ rights and freedoms online – or [whether it would be] a chance to clarify and improve the current situation”.

“The rest of the world is watching the EU as a regulatory power to see if it will rise to the occasion of curbing surveillance capitalism.”

The European Commission announced that as part of its European Digital Strategy, it would put forward a Digital Services Act, mainly as a way to “strengthen the Single Market for digital services and foster innovation and competitiveness of the European online environment”. Since then, the EDRi network has moved to a shared understanding of the DSA, not just as a way to develop the digital economy but as a unique opportunity to limit the powers of dominant digital platforms whose business practices threaten our democracies today. The rest of the world is watching the EU as a regulatory power to see if it will rise to the occasion of curbing surveillance capitalism.

Digital rights advocacy in a complex arena

Our challenges towards remaining a critical and influential voice in this debate are multi-fold.

First, we need to build consensus in a network of 44 member organisations of various sizes, geographical and topical scope and diverging societal visions. This diversity is valuable in evaluating the Digital Services Act as a way to improve individual users experience on the internet, redress ‘collective harms’ such as digital discrimination and put forward an overhaul of the rules to rein in power imbalances between corporations and people.

As the DSA has been presented as a way to address online hate speech and illegal content, EDRi has engaged with organisations working to promote racial justice and to combat all forms of discrimination and hate speech. EDRi has continued these discussions at a Privacy Camp panel on online violence with representatives of marginalised groups (female journalists, Roma people, people with disabilities, LGBTQI+ community). In July 2020, we held a second workshop with ‘non-digital’ rights groups to provide updates and gather ideas for the DSA consultation and EDRi’s answering guide to the consultation. EDRi has made it a point to engage as early as possible with other civil society organisations to ensure that our advocacy efforts complement each other. This has undoubtedly come with challenges in working with a larger coalition, from human rights groups to joint efforts to protect democracy.

Additionally, Big Tech is heavily lobbying against a Digital Services Act that puts people’s rights above profit, both in Brussels and through EU Presidencies. The Big Tech corporate lobby has profited immensely from the pandemic, promoting themselves as ‘saviors’ pushing technological solutions for fundamentally social and health care problems. Putting Big tech corporations at the center of the fight against the COVID pandemic, however, can help shield them against meaningful regulation and move the focus away from fundamental rights and freedoms. As a result, EDRi and the broader human rights community face unprecedented corporate lobbying pressure in favour of keeping the Digital Services Act small and mainly focused on selected aspects of the Single Market and tech ‘innovation’.

First evaluation and next steps

EDRi has regular exchanges with representatives of the European Commission and government officials as well as with Members of the European Parliament. This has included meetings with the European Commission Vice-President Věra Jourová, with the Commissioner for Digital Policy Thierry Breton as well as with the cabinet of the Executive Vice President Margrethe Vestager. EDRi published its position paper ‘Platform Regulation Done Rights’ in April 2020 as an attempt to support the European Commission in asking the right questions in its consultation. Some proposals were already picked up in the European Parliament committees’ three DSA reports such as protecting the prohibition of any general monitoring obligation, the distinction between online marketplaces and content hosting providers (in the IMCO report), meaningful Ad tech and algorithmic optimisation regulation, a functioning notice-and-action regimeand out of court dispute settlement for users.

The EDRi network will continue to invite others to join civil society efforts and ensure that the European Union lives up to its fundamental rights and democratic principles. You can read our answer to the DSA consultation and submit your own with the help of our answering guide here.

(Contribution by Claire Fernandez, EDRi Executive Director)