The DSA Shows the Trouble With the EU’s Opaque Policy-Making

Like dust The Digital Services Act (DSA), set aside from last weekend’s frantic EU debate on the “new constitution for the Internet”, remains to be seen whether human rights champions, defenders of democracy and proponents of free speech should celebrate this milestone.

DSA provides a unique opportunity for Europe to set global standards for online content management. The ambitious provisions of the law – such as enhanced algorithmic and content restraint transparency, extensive due diligence obligations and risk assessment and mitigation measures – promise to establish a comprehensive and comprehensive legal framework that addresses many of the challenges of the digital ecosystem and clear obligations. Manage invalid content.

So why aren’t civil society parties celebrating the announcement of a temporary political agreement? For one thing, the final text of the DSA is not yet ready and will not be for a few weeks, as many of the elements known as technical meetings still need to be fine-tuned. What’s more, experts and lawyers aren’t entirely sure what surprises are in this interim agreement. This uncertainty speaks of greater concern about the individual lack of transparency during inter-institutional discussions – arguably the most important stage of the legal process, where the final text of the regulations comes to life.

Broadly speaking, lack of inclusion, democratic transparency, and equitable participation have long been the subject of debate in EU policy-making. Due to the ongoing exclusion of voices and perspectives from marginalized groups and the absence of interdisciplinary approaches, the ambiguity at this stage of the DSA process was sadly surprising. As a result, well-thought-out laws fail to provide adequate protection for those who are most negatively affected by the issues that constitute its structural goals.

Such discussions are an integral part of the EU’s by-laws. Once the European Commission submits a draft of a proposed law, the European Council and the European Parliament spend a considerable amount of time examining, sorting, revising and revising it. As a result, their mandate develops into a version of the text that they will discuss. The 705 members of the European Parliament can vote to approve or reject the House’s proposal, which forms the basis for what key negotiators will fight for as the process progresses. Similarly, the European Council goes through a broad process where member states can propose amendments because compromises are reached and agreements are reached for their “common approach”.

Civil society groups and experts can be extremely active and directly involved during this period. In the context of the DSA, outside voices have successfully fought for the inclusion of measures that protect democratic and fundamental rights. This phase provides a key opportunity for democratic participation in the EU, and advocates and human rights experts work tirelessly to ensure that the text that has reached the negotiating table is as progressive and rights-protective as possible. However, once the democratic part of the process is over, a more opaque phase called inter-institutional discussion or trilogy begins. In this part of the DSA discussion, a number of disturbing provisions were introduced and existing provisions were dramatically amended, with the final result detached from the democratically agreed mandate.

Once the trilogy begins, anyone who is not in the room will have to navigate a fast-moving and opaque process and rely on innovative methods and allied networks to make sure discussions are evolving and what compromises are on the table. These elements change so quickly that it becomes a challenge to maintain, and the opportunity to improve a provision can be easy to miss. Advocates faced similar challenges in EU regulation and GDPR development to prevent the spread of terrorist content online, both of which unfortunately fell short, lacked adequate protection of fundamental rights in terrorist control, and failed to enforce the GDPR.

The most notable example of a hastily introduced provision in the DSA during the Trilogy was the “crisis response process”, which gave the European Commission unilateral powers to declare a state of emergency across the Union and needed a platform to mitigate. In light of the epidemic and war in Ukraine, it is understandable that legislators will take the opportunity to add measures to address future crises. But such measures cannot come at the expense of the obligation under the founding agreement to uphold the rule of law, especially since the European Court of Justice has dismissed only two member states’ allegations of violations of the rule of law.

Without democratic checks and balances, increasing the government’s capacity to potentially suppress rhetoric and to make comprehensive decisions – something that will enable the crisis response process – is a red line that should not be crossed. Fortunately, and thanks in large part to the concerted advocacy efforts of civil society organizations, important protections were embedded in the provisions and the European Commission was not given unilateral powers. But the provision was still enacted and discussed outside the mandate of co-legislators, which calls into question its democratic legitimacy. And it can still prove problematic; We will not know until the final text is published.