EFF Statement on EU Parliament’s Adoption of Digital Services Act and Digital Markets Act

SAN FRANCISCO–The European Union reached another milestone by approving the “Digital Services Act package” this week. The Digital Services Act and the Digital Markets Act are intended to create a safer and more competitive digital space.

By setting out new responsibilities for online platforms, the Digital Services Act (DSA) was supposed to rein in the power of Facebook, Google, Apple, and Amazon and both better educate and empower users, but many of its approaches were initially quite problematic. The final bill avoids transforming social networks and search engines into censorship tools, which is great news. It also retains important principles under the previous internet rules that helped to make the internet free, such as allowing liability exemptions for online platforms for the speech of others and limiting user monitoring. And it improves things as well, by imposing higher standards for transparency around content moderation and creating more user control over algorithmically-curated recommendations.

However, the DSA is not a panacea for all problems users face online and the final deal isn’t all good news: It gives way too much power to government agencies to flag and remove potentially illegal content and to uncover data about anonymous speakers. The DSA obliges platforms to assess and mitigate systemic risks, but there is a lot of ambiguity about how this will turn out in practice. Much will depend on how social media platforms interpret their obligations under the DSA, and how European Union authorities enforce the regulation.

“There’s a lot to like in the Digital Services Act. Far too many proposals launched since work on the DSA began in 2020 posed real risks to free expression by making platforms the arbiters of what can be said online and the DSA avoids many of them,” said Christoph Schmon, EFF’s International Policy Director. “That being said, we can expect a highly politicized co-regulatory model of enforcement with an unclear role of government agencies, which could create real problems. Respect for the EU’s fundamental rights charter and inclusion of civil society groups and researchers will be crucial to ensure that the DSA becomes a positive model for legislation outside the EU.”

The final judgment on the success of the related bill, the EU’s Digital Markets Act (DMA) also hinges on the question of human rights-centered enforcement. While the complete set of responsibilities the DMA places on “gatekeeper” platforms should help create space for competition, the crucial steps of implementation and enforcement must be done very carefully, especially to avoid reversing important gains in the security and privacy of end-to-end encrypted messaging services like Whatsapp and iMessage. That’s why we’ve advised the EU Commission to broaden its security exceptions in practice, and show flexibility in enforcing the DMA’s interoperability mandate to make sure that there’s sufficient time for resolving all significant technical and policy hurdles.”