Digital Services Act includes many RSF's proposals but ignores major issues for press freedom

Reporters Without Borders (RSF) hails the historic nature of the European Union’s Digital Services Act (DSA), which is due to be adopted by the end of June following the latest negotiations, but also points its insufficiency. Although the DSA incorporates many of RSF’s proposals for regulating the information chaos caused by the leading online platforms, major issues have been neglected and will have to be addressed by future legislation.

Technical discussions on the DSA concluded in early May within the trilogue – the informal framework for negotiations between the European Commission, Parliament and Council. The Commission's legal services are now giving it the final touches before submitting it to Parliament and the Council for formal adoption before the end of the French EU presidency on 30 June.

The DSA has taken a huge step forward by increasing accountability for Internet actors, especially social media, search engines and retail websites. Along with the future Digital Markets Act (DMA), which is also pending formal adoption following the completion of trilogue negotiations in March, the DSA could establish Europe as a model of digital regulation, although it ignores a number of essential topics.

“This legislation constitutes a historic first in many aspects, even if we had hoped for stronger and more structural measures to guarantee the right to reliable information online, RSF secretary-general Christophe Deloire said. We call on the European Union to go further and to remedy these shortcomings in order to contribute to this fundamental democratic objective.”

Some of RSF’s recommendations included

RSF made proposals for regulating digital actors throughout the negotiations on the DSA and even before the Commission presented its draft in December 2020. Many of these proposals stem from the November 2018 Declaration on Information and Democracy by a panel of 25 well-known figures that was formed as a result of an RSF initiative – a declaration that gave rise to the Partnership on Information and Democracy signed by 45 countries, including 24 EU member states.

The recommendations that RSF made during the negotiations, especially in June 2021 and February 2022, aimed above all at ensuring that the DSA incorporated democratic safeguards for the right to information online. RSF is pleased to see that many of these recommendations are in the final version.

  • The DSA and DMA concepts of “very large online platforms” and “gatekeepers” and the specific requirements imposed on them correspond to the concept of platforms that “structure” the online information and communication space that was developed in the International Declaration on Information and Democracy.
  • By identifying the “systemic risk” that these very large platforms can pose and, as a result, by imposing requirements on them, the DSA has responded to RSF's request that obligations be placed on platforms in proportion to their impact on the online information and communication space. This recognition constitutes a paradigm shift – platforms are no longer regarded as mere content hosts – and underlines their responsibility in the information chaos.
  • RSF called for a due diligence requirement to be placed on the platforms with regard to the impact of their activities on the public space. The DSA has imposed this duty of care on them, thereby marking the end of platform non-accountability. Platforms will have to identify and assess the impact of their activities, in particular on fundamental rights, public debate, press freedom and democracy, and to correct the negative effects, under the constant control of the authorities and the courts. The specific risk linked to platform algorithms and their recommendation systems was recently added to the DSA, as RSF recommended.
  • To promote reliable online information and combat disinformation, RSF made another concrete proposal – requiring platforms to promote reliable information sources in their recommendation systems. The DSA includes no such obligation but it does provide for significant progress in this respect by referring to the “code of conduct against misinformation,” a self-regulatory tool currently being negotiated between the platforms, the Commission and civil society organisations including RSF. This code provides for commitments by platforms to promote reliable information sources via their algorithms, and the Journalism Trust Initiative (JTI), a market mechanism for promoting real journalism, is named as one the tools available. Although it is regrettable that the DSA did not make this a direct obligation, the implementation of such a commitment as part of the due diligence requirement and under the Commission’s control could have a real impact.
  • RSF also welcomes that the DSA includes real progress on the platforms’ transparency, their content moderation activities and their targeted recommendation systems. The platforms will have to submit to regular audits, as RSF requested.
  • As recommended by RSF, content moderation provisions include better safeguards for users’ right to freedom of expression. Safeguards for respect by platforms for media freedom and pluralism are also improved and users' rights of appeal against platform operations are strengthened.
  • RSF recommended that a political, ideological and religious neutrality requirement be imposed on the platforms, as well as a neutrality requirement regarding their own interests. The DMA imposes an obligation to the platforms not to rank their own products or services more favourably than those of other market actors. Any platform conflicts of interest may be subject to sanctions, as RSF proposed.

It is unfortunate that the DSA does not include a neutrality requirement with regard to political, ideological and religious issues. Although platforms are required to moderate content in a neutral, objective and non-discriminatory manner, and although they have a duty of care with regard to their impact on public debate, this is not enough to prevent them from one day deciding to promote one or other ideological orientation in their recommendation systems.

Missed opportunities to be addressed in the future

Despite the undeniable progress in the DSA, future legislation will have to address its omissions and regrettable aspects:

  • To combat disinformation in times of crisis, such as the pandemic or the war in Ukraine, the DSA provides for the creation of a “crisis protocol” between the Commission and the platforms under which the platforms might have to “display prominent information on the crisis situation provided by the Member States’ authorities or at EU level.” RSF regrets that the DSA is thereby giving preference to governmental information over independent journalistic reporting.
  • An opportunity has also been missed to establish a real system for protecting democratic information spaces. The forthcoming review of proposed European press freedom legislation could provide another opportunity to combat the dissemination of malicious disinformation in the European information space by entities controlled by autocratic governments.
  • Messaging services were left out of the DSA. RSF regards this absence as regrettable, given the importance of these services. The working group on “infodemics” of the Forum for Information and Democracy, which was created on RSF’s initiative, has nevertheless formulated many relevant recommendations on the subject that should have served as a reference for the EU’s legislators.
  • Contrary to what RSF and the European Parliament requested, the DSA does not guarantee the right to encryption - trusted technology for person-to-person communication that is essential for journalists to be able to protect their sources.

The Forum on Information and Democracy has published more than 350 recommendations for strengthening safeguards for the right to freedom of opinion and expression online. The European Union must use these recommendations in order to enhance the progress made possible by the DSA and DMA.

Publié le 09.05.2022