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Digital Services Act (DSA)

Along with the DMA (Digital Markets Act), the DSA (Digital Services Act) is considered to be the latest major legislation for shaping the digital revolution by the EU after the General Data Protection Regulation. The EU Commission’s goal was to establish new rules for online platforms, especially for very large ones, such as Google, Apple, Facebook, Amazon, Airbnb, or Booking.com. The final text is now ready and the results are disappointing.


I was the Civil Liberties Committee’s rapporteur for the fundamental rights implications of the proposal (Opinion provided by the LIBE Committee). This included the responsibility for representing the Committee’s opinion, participation in the leading IMCO Committee’s negotiations on the proposal as well as in the final trilogue negotiations with Council and Commission this year. I was also shadow rapporteur for the Legal Affairs Committee’s (Opinion provided by the JURI Committee).

What is it about:

The Digital Services Act (DSA) sets global standards for the online environment. The DSA regulates the free exchange of opinions online, our choices as consumers, the right to privacy, and the basic principles of a global Internet. My aim was to put the rights and freedoms of citizens at the center of the new framework. Digital communications have the immense potential to allow everyone to have a voice, to mobilise and to connect globally – but they can also pose a real threat to fundamental rights, our democracies and our economies. The DSA should have tackled the harmful surveillance capitalist business model used by many online platforms but kept it intact.

I have criticised the legislation for failing short of addressing the current challenges of regulating digital communication. In some respects it makes things even worse. It encourages the use of error-prone upload filters and other instruments of privatised surveillance and control by platforms. It labels anonymity (“inauthentic use”) a risk. In the course of the negotiations, I tabled numerous amendments for the LIBE Committee that addressed these problems. The amendment on digital privacy and the right to anonymous internet use was adopted. But they are not part of the final legislation.


The Final Text:

After months of negotiations, take-it-or-leave-it compromises and last minute changes, the final text was approved. The original proposal had both opportunities and flaws, but in regards to the aim of creating a regulatory framework in which ensures free exchange of opinions online and protect the right to privacy, the final text has turned out inadequate and disappointing.

The LossesThe Wins
No “Stay-Up” requirements for legal content. Content can still be taken down legally even if it is not illegal.Prevention of “Know your Business Customer” identification requirement to all services.
No right to use digital services anonymously to protect against surveillance adsPrevention of fixed take down deadline which would have threatened free speech for lack of time.
No limitations on upload filters.No marketing to minors: platforms shall not present advertising to known minors
The ban on micro-targeting was watered down to a prohibition only on “profiling using special categories of sensitive data”Requirement that targeting of an information order needs to be very specific, to prevent bulk requests on a large number of users
No effective prohibition on deceptive design of online services (dark patterns); no “do not track” option in your device.Very large online platforms will be required to offer at least one recommender system not based on profiling.

The greatest advantage of the DSA is that it replaces many national laws (like the NetzDG in Germany) which were even more intrusive and restrictive.

What the DSA does not achieve:
  1. Ban automated censorship algorithms (upload filters). Automated upload filters are often unable to distinguish between illegal and legal content where legality depends on context or the publisher’s intention. Unfortunately, error-prone upload filter censorship engines can even be made mandatory.
  2. Content removal orders should require a court order and should not affect content legally published abroad in order to prevent authoritarian governments from applying national censorship legislation that violates fundamental rights throughout the EU.
  3. Put an end to surveillance capitalism. Individuals’ online activities allow deep insights into their personalities and open the door to manipulation and influence. The collection and exploitation of our online activities should, therefore, be limited to what is strictly necessary to provide digital services. Behavioral advertising should be phased out.
  4. Users should have a right to use digital services anonymously wherever possible. Anonymous use of digital services successfully inhibits the illicit disclosure of data, identity theft, and other forms of misuse of personal data, which was collected online and protects vulnerable users against discrimination.
  5. Users should be given control over the algorithms prioritising the information that is presented to them in timelines etc. in order to contain the algorithm-driven spreading of problematic content. Since commercial platforms have an interest in displaying as many advertisements as possible, their algorithms tend to recommend sensationalist and extreme content to keep users online, resulting in the spread of conspiracy theories, disinformation and hate speech. By allowing users to choose external algorithms for sorting their timelines, content would be recommended based on what users truly want or don’t want to see (rather than the platform’s commercial interest.
  6. Users should benefit of a right to meaningful cross-platform exchange of information (interoperability) to ensure a diverse online ecosystem and users’ freedom of choice: My goal is for users to be able to communicate with each other via different services (e.g. social networks). For example, interoperability means that people can follow Facebook or Twitter accounts and react to them via alternative platforms. True interoperability should enable a competitive market for the most innovative services and allow users to leave dominant platforms while still keeping in touch with their contacts. While we didn’t achieve interoperability for social media platforms, the Digital Markets Act will require them for messaging services (Whatsapp, Facebook Messenger).

What now?

Even though many points of my vision where not included in the final DSA text, there are still opportunities to fight for them in other legislative files. In the upcoming ePrivacy negotiations, we must fight for a right to encryption and a “do not track” browser setting. For the Commission’s proposal on “Transparency and Targeting of Political Advertising”, we will campaign on the protection of elections against manipulation relying on digital surveillance data. And if the Commission really publishes a proposal on data retention then we will fight against this form of mass surveillance too!

Looking back on how we got to the Final Text

Timetable of negotiations

Explanation: For the Digital Services Act, the Parliament’s IMCO Committee (Committee on Internal Market and Consumer Protection) has the lead to propose the Parliament’s position. Other associated committees, such as the Civil Liberties Committee (LIBE), Legal Affairs Committee (JURI) and Industry, Research and Energy  Committee (ITRE), Women’s Rights and Gender Equality Committee (FEMM), Culture and Education Committee (CULT), Transport and Tourism Committee (TRAN) and the Economic Committee (ECON) provided opinions on the legislation with regard to their respective field of competence to the leading IMCO Committee. I am the rapporteur for the LIBE Committee’s Opinion, covering primarily the fundamental rights aspects of the proposed legislation. I am also the shadow rapporteur for the Opinion of the Legal Affairs Committee (JURI). The opinions prepared by these two committees also fed into the main report of the leading IMCO committee. As LIBE rapporteur for opinion I participated in the shadow rapporteur meetings of the lead committee as well as in the trilogue.

Below you can therefore see the timeline: 

  • 20 Janury 2022: Final vote on the Parliament’s position on the Digital Services Act (vote on the IMCO report by all Members of Parliament in the plenary session)
  • 31 January 2022: Start of the trilogue negotiations between Parliament, Council and Commission
    • 2 February 2022: Internal technical negotiations of the European Parliament
    • 3 February 2022: Internal technical negotiations of the European Parliament
    • 7 February 2022: Internal technical negotiations of the European Parliament
    • 10 February 2022: Internal technical negotiations of the European Parliament
  • 15 February 2022: 2nd Trilogue
    • 16 February 2022: Internal technical negotiations of the European Parliament
    • 17 February 2022: Internal technical negotiations of the European Parliament
    • 28 February 2022: Internal technical negotiations of the European Parliament
    • 3 March 2022: Internal technical negotiations of the European Parliament
    • 7 March 2022: Internal technical negotiations of the European Parliament
    • 8 March 2022: Internal technical negotiations of the European Parliament
    • 14 March 2022: Internal technical negotiations of the European Parliament
  • 15 March 2022: 3rd Trilogue
    • 17 March 2022: Internal technical negotiations of the European Parliament
    • 21 March 2022: Internal technical negotiations of the European Parliament
    • 23 March 2022: Internal technical negotiations of the European Parliament
    • 29 March 2022: Internal technical negotiations of the European Parliament
  • 31 March 2022: 4th Trilogue
    • 4 April 2022: Internal technical negotiations of the European Parliament
    • 5 April 2022: Internal technical negotiations of the European Parliament
  • 19 April 2022: Technical trilogue
  • 21 April 2022: European Parliament Shadows meeting
  • 22 April 2022: 5th Trilogue (final)
  • 15 June 2022: Council’s COREPER agreed on consolidated text
  • 16 June 2022: Vote on IMCO Committee
  • 5 July 2022: Plenary vote on consolidated text

Event Recording: Digital Services Act – A Game Changer for our Fundamental Rights?

Watch the recording of our panel debate with Soshana Zuboff (Harvard Economist and Author of “The Age of Surveillance Capitalism), MEP Christel Schaldemose (DSA Rapporteur), Werner Stengg (Digital Policy Expert Cabinet Vestager), Christoph Schmon (International Policy Coordination (Electronic Frontier Foundation), David Reichel (Data and Research Unit, EU Agency for Fundamental Rights) and MEP Patrick Breyer (LIBE DSA Rapporteur).

Official documents

Commission Proposal and Reactions

LIBE Opinion

JURI Opinion

IMCO Report (lead Committee)

Trilogue

Final Text