On 30 June 2021, ARTICLE 19 published a briefing on the draft report of the Internal Market and Consumer Protection Committee (‘IMCO’) of the European Parliament, raising numerous concerns about certain amendments which threaten the protection of freedom of expression. We believe that some of the new provisions such as mandatory removals within 24 hours of illegal content, preferential treatment given to politicians’ speech and the blocking of access to platforms for failure to comply with the DSA will disproportionately affect users’ right to free expression and access to information. We call for a complete removal of these provisions that are unnecessary in a democratic society.
On 28 May 2021, the rapporteur for the IMCO Committee of the European Parliament, Christel Schaldemose MEP, published her draft report on the Digital Services Act. ARTICLE 19 welcomes the improvements that have been made to the text particularly in relation to users’ rights and the proposed Article 24a (1) that is a step towards no profiling by default. We also welcome the extension of the scope of the no-profiling obligation to all online platforms.
At the same time, ARTICLE 19 is concerned about numerous proposed additions to the DSA, which in our view, are incompatible with the protection of the right to freedom of expression:
- The revised notice and action procedure now contains unduly short timeframes. Certain categories of illegal content must be removed within 24 hours. In practice, platforms will over-rely on automated filters to meet the short deadline which will undoubtedly lead to violations of freedom of expression.
- A new provision in the DSA, Article 20(4) (a), provides for judicial authorisation for suspension of public interest accounts, which explicitly includes politicians’ accounts. This means that average users would not enjoy the same levels of protection as politicians or other public interest accounts. Judicial oversight should not be limited to suspension of politicians’ accounts but for any owner of an account which is allegedly violating the law.
- The draft Report also proposes a “must-carry obligation” to ensure that recommender systems provide information from trustworthy sources. It suggests that information from public authorities and scientific sources be the first search queries in matters of public interest. This is a significant concern as it suggests that public authorities are the most trustworthy sources of information. In a democratic society, a diversity of information should be promoted and public authorities should not be seen as the sole or most authoritative sources of information on matters of public interest.
- New Article 41(2)(a) enables Digital Services Coordinators to request a judge to block platform access as an interim measure for failing to comply with the DSA’s obligations. This type of sanction will only penalise users and prevent them from exercising their right to freedom of expression. This is a highly disproportionate and draconian response for failure to comply with the DSA’s obligations.
In light of the above, ARTICLE 19 makes the following recommendations:
- Delete amendments that would mandate the removal of certain categories of illegal content within 24 hours and others within 7 days;
- Delete amendments providing for preferential treatment being given to public interest accounts, such as those of politicians, so that they would be suspended following judicial authorisation under new Article 20 (4) (a);
- Delete amendments proposing ‘must-carry obligations’ in recommender systems, particularly those that require the display of trustworthy sources of information ‘such as public authorities or scientific sources’ in response to search queries on public interest issues in new Article 24a (6) and related recitals;
- Delete amendments to Article 41 that would grant Digital Services Coordinators power to request the interim blocking of platforms as a sanction for repeat infringements or to prevent a ‘risk of serious harm’. The same should apply to the interim blocking powers granted to the European Commission under new Article 55.
ARTICLE 19 has also joined a group of leading human rights organisations to raise a range of additional concerns for the protection of freedom of expression and privacy, including amendments that would undermine the prohibition on general monitoring obligations and the creation of a trusted flagger mechanism that could be used to circumvent rule of law processes, amongst others.