The Digital Services Act (DSA) 2022 applies to all online intermediaries and platforms operating in the European Union (EU). DSA represents a major shift in how digital platforms are regulated, especially targeting large tech companies with the potential to influence global markets—a phenomenon often referred to as the Brussels Effect. This legislation aims to address critical issues such as misinformation, content moderation, and platform accountability, particularly in relation to very large online platforms (VLOPs), which can have populations as large as entire countries. While the DSA advocates for certain codes of conduct regarding misinformation, the complexities of self-regulation, particularly concerning encrypted communications, challenge platform accountability. Moreover, the potential for the DSA to influence global digital policies like the European Union’s impact through the General Data Protection Regulation (GDPR), remains uncertain. However, the DSA’s alignment with the Rule of Law is evident in its emphasis on legal predictability, transparency, and accountability. By imposing clear legal obligations on platforms, the DSA fosters trust and strengthens the Rule of Law in the digital realm, promoting a safer and more regulated online environment.
Legal Accountability
The DSA imposes strict due diligence obligations on large online platforms with significant reach across the EU, addressing potential societal risks. It introduces codes of conduct on misinformation, promoting responsible platform behaviour. However, challenges remain in regulating harmful content, such as racist slurs or anti-religious posts, and in defining illegal content. For example, during crises like the Israel-Gaza conflict, the spread of fake AI-generated content can exploit sensitive issues, highlighting the need for clearer boundaries. This calls for adopting thick conception of the rule of law, incorporating political and regional considerations to set fair and context-aware rules.
Secondly, the DSA enforces penalties for non-compliance, reinforcing the Rule of Law. However, it lacks a major element of the rule of law, which is enforceability, the backing of laws by state authority is the key. The effectiveness of these obligations, and whether their benefits outweigh the costs for platforms and enforcement bodies, remains debatable. As for the due diligence obligations, it is doubted how many of them will be embraced by digital platforms. Furthermore, not all obligations directly protect individual users, and issues like private remedies, such as damages or injunctive relief, raise concerns about their applicability under national laws. Thus, clarification on the interpretation of standards, such as general monitoring and diligence, may also be needed for uniformity.
Balancing user rights and state control
The Digital Services Act (DSA) provides a comprehensive framework for regulating online content, with an emphasis on notice-and-action mechanisms that require platforms to take an active role in content moderation. This approach represents a significant step forward in addressing the complexities of online regulation. In line with the Rule of Law, which ensures that laws apply equally to all individuals and entities regardless of power or status, the DSA seeks to uphold this principle in the digital sphere. However, despite these advancements, there are concerns surrounding the clarity and voluntariness of consent in the notice declarations. These declarations are often lengthy, convoluted, and difficult to comprehend, which raises doubts about whether users’ consent can truly be considered ‘freely given’. A notable example of this concern arose when Germany’s Federal Cartel Office (FCA) ruled that Facebook’s data processing consent was invalid due to its lack of voluntariness. In light of this, the DSA misses an opportunity to empower users with the ability to issue counter-notices, which would offer a more balanced approach and protect fundamental rights on both sides.
One of the main challenges of the DSA lies in reconciling its content regulation goals with the protection of fundamental rights, particularly privacy and freedom of expression. While the DSA provides mechanisms for users to challenge content moderation decisions, they can only do so after the intermediary platform has already decided. This limits the ability of users, who may not have the same power as large corporations controlling vast amounts of user-generated content; to assert their rights in a fair and timely manner. As a result, while the DSA aims to protect users, it could also inadvertently restrict their rights, suppress dissent, or even support oppressive regimes due to its potential lack of transparency and fairness in implementation. A more promising approach would be for the DSA to impose regulatory requirements that reflect core societal values, compelling service providers to translate these values into algorithmic specifications. By doing so, platforms would be required to incorporate these standards into their systems, ensuring that content regulation is not only effective but also aligned with fundamental rights and democratic principles.
Global Impact and Rule of Law Alignment
The DSA should align its principles with the rule of law, particularly in terms of enforceability, transparency, and accountability, to ensure that the framework is both effective and impactful. By doing so, it would provide a more robust legal foundation for regulating online platforms. Furthermore, the DSA carries what is known as the “Brussels Effect,” meaning it can influence other countries outside the EU and potentially impact national laws, as seen with the GDPR. This effect allows EU laws to set broad standards and regulations, potentially shaping global digital governance in the process.
Surya Simran Vudathu is an LLM student specializing in International Commercial Law at the University of Nottingham. She graduated from Amity University, Mumbai, in 2024, earning a dual degree in law and arts.
