Navigating the nexus of Policy, Digital Technologies, and Futures (S1/E7)

S1/E7: The Digital Services Act and the new notions of VLOP and VLOSE – Part 2

Greetings for the Part 2 of the Digital Services Act (DSA)!

Today I’ll mainly talk about DSA’s main benefits and potential implementation challenges, as well as the detailed calendar of its application. You can find Part 1 here.

Remember that the DSA encompasses a wide range of digital services, including online platforms, social media networks, online marketplaces, and search engines. It focusses on very large online platforms (VLOP) and very large online search engines (VLOSE), and aims to protect users, level the playing field, and foster fair competition in the digital economy. By imposing additional obligations on dominant platforms, the EU considers that the Act will prevent anti-competitive practices, thereby encouraging innovation and supporting the growth of smaller competitors. The DSA will further enhance user protection and market competition, and will address illegal content and harmful online practices, like disinformation.

While the DSA's intentions are commendable, implementing its provisions may present societal challenges lying beyond the already very complex issues related to practical enforcement. Think, for instance, that determining the frontier between permissible content moderation and censorship, in a fast-paced digital landscape and based on a fuzzy concept like “disinformation”, requires careful consideration to protect freedom of expression without compromising safety and security.

Indeed, the line between having access to a diverse, impartial media or to 1984-type Propaganda machines can be quickly crossed, as we witnessed with the COVID-19 pandemic or the war in Europe. Consider that, after all, the EC has recently censored several media outlets, with the pretext that it is protecting EU society against foreign interference. Is the EC going to create a Ministry of Truth, as described by George Orwell, to help enforce the DSA? We may see warning signs of a large and slippery slope ahead. And I just hope that the new European Centre for Algorithmic Transparency (see below) is not part of it.

Practicalities of the calendar

On more practical terms, the DSA was published in the official journal of the European Union on 27 October 2022, and entered into force on 16 November 2022. The general date of entry in application of the DSA is set to 17 February 2024, after which it will be fully applicable for all entities in its scope.

By 17 February 2023, platforms and search engines reported the number of their active end users in Europe to the EC. Based on these user numbers, the Commission is making an assessment as to whether a platform should be designated a VLOP or VLOSE. And on 25 April, 2023, it already identified 19 online platforms and search engines that must comply with its more rigorous rules for digital services.

Following such a designation decision by the EC, the entity in question will have four months to comply with the obligations under the DSA, including carrying out and providing to the Commission the first annual risk assessment exercise. This means that, for those 19 platforms and search engines, their compliance deadline is the 25th of August 2023.

Furthermore, EU Member States will need to designate their Digital Services Coordinators. It’s expected that some of them will need to be established from scratch, while others will have to merge or simply eliminate existing national bodies.

Therefore, by summer 2023, users should start to notice changes on the platforms, likely including features that facilitate flagging potential illegal content. Updated Terms and Conditions are also coming, which should be clear and intelligible to all users, even minors. (Yes, we wish.)

Moreover, and in case you haven’t noticed, the European Commission has recently launched a European Centre for Algorithmic Transparency (ECAT), to help in its enforcement efforts, and has promised to thoroughly examine VLOP and VLOSE compliance starting in summer 2023. The ECAT will be tri-localised, in all of the JRC sites at Seville, Ispra, and Brussels. And they’re hiring!

Finally, there are a multitude of delegated acts, implementing acts, standards, and suggested codes of conduct, which are referenced in the DSA and have yet to be written. A lot of work needs still to be done in order to reduce incertitude in the legislation.

Only time will tell

As we all know, EU's digital regulations are bound to have global impact. Evidently, the EC hopes that the DSA will serve as a blueprint for other jurisdictions worldwide, influencing global discussions on digital governance and user protection, as much as the GDPR became so in personal data protection. However, this time is different, because the DSA mixes anti-trust measures with downright censorship. In case you have been following the public spats between EC commissioner Thierry Breton and Twitter’s Elon Musk, e.g. about the voluntary Code of Practice against disinformation, the freedom of opinion is at their core and some think that the DSA is another weapon to be used by the EC to control it. Next time a country, whose government we may dislike, censors public speech in digital platforms, we, in the EU, may not be in a position to complain.

This was, again, a very long and sober summary of a EU initiative, which actually took two episodes. And to think that, originally, I had the intention of writing only one episode for both the DMA and the DSA! As a matter of fact, the digital revolution unleashed a multitude of independent forces that the established, industrial-era governance can hardly control. Hence, the digital legislations of the EU are very much all-encompassing and, thus, long to analyse. I just hope that, in spite of its episodes’ length and dryness, this series helps the members of SWForum.eu to understand a little better the EU policy landscape and to prepare themselves for the new reality being put in place by the EU institutions.

Keep an eye at this space! Soon there’ll be yet more policies proposed by the EC, probably concerning that most basic of digital components: data.

[This blog series is inspired by research work that is or was partially supported by the European research projects CyberSec4Europe (H2020 GA 830929), LeADS (H2020 GA 956562), and DUCA (Horizon Europe GA 101086308), and the CNRS International Research Network EU-CHECK.]

Afonso Ferreira

CNRS - France

Digital Skippers Europe (DS-Europe)