ARTICLE 19 welcomes the publication of Putting collective intelligence to the enforcement of the Digital Services Act, a new report by Dr Suzanne Vergnolle (the Report). The Report provides key recommendations for cooperation mechanisms between civil society organisations and regulators to guarantee strong civil society involvement in Digital Services Act (DSA) enforcement. The Report suggests establishing expert groups at both the European Commission and Member States levels to shape an effective enforcement strategy and explains how it can be done.
The DSA, adopted by the European Parliament in July 2022, promises to protect users’ fundamental rights in the online environment. Despite the shortcomings of the regulation, the DSA does have the potential to bring significant improvements for human rights online. Much will depend on how it is enforced.
To put it simply, the DSA provides for a layered enforcement regime, with its enforcement powers divided between the European Commission and national regulators. The European Commission will be the primary regulator for very large online platforms (VLOPs) and very large online search engines (VLOSEs), which reach 45 million users, 19 of which were officially designated by the Commission on 25 April 2023. The Commission – with support of the Board of Digital Services Coordinators – will be in charge of enforcing a set of new due diligence obligations applying to VLOPs and VLOSEs regarding, among others, a duty to manage systemic risks, annual independent audits, data access, and online advertising transparency. Meanwhile, the Digital Services Coordinators of the respective Member States will supervise the rules as they apply to the rest of the intermediary services based in or operating out of their state.
Whether one of the DSA’s main stated objectives – the protection of fundamental rights – can be achieved will largely depend on an effective enforcement regime that places human rights considerations at its centre and that assures close involvement of civil society and independent experts at all stages of the enforcement process. As stated in the Report, ‘it is evident that the enforcement of the [DSA’s] rules will require cooperation with organisations that have strong experience of these topics because they have been working on them for a long time. Indeed, civil society organisations can provide evidence-based recommendations to the regulators and bring up the voice of people whose rights have been hurt by online intermediaries.’
Many civil society actors who have for years been bringing their expertise to platform regulation discussions and the DSA negotiations have been calling for just that – strong cooperation between regulators, civil society and independent experts in the DSA enforcement.
The Report analyses how civil society organisations and independent researchers can and should play an active role in shaping an effective DSA enforcement strategy and recommends that both the European Commission and Member States establish expert groups composed of civil society organisations and independent experts to facilitate this cooperation. The Report then presents specific recommendations regarding the selection of members, mandate, and administration of the expert group to be formed with the European Commission.