The Out-of-court dispute settlement mechanism in the Digital Services Act: A disservice to its own goals

Abstract

The Digital Services Act (DSA), proposed by the EU Commission, introduces extensive content moderation rules for online platforms. Under Article 18 DSA, users whose content has been blocked or removed or whose account has been suspended by the platform are entitled to select a certified out-of-court dispute settlement body to resolve their disputes with the service provider. The author describes context and parties of online speech, examines conditions and consequences of this redress mechanism, and concludes that the proposed provision is flawed in several ways: it does not approximate different regulation, but promotes fragmentation and creates legal uncertainty; it does not provide criteria or standards for the complex factual and legal determinations and balancing of rights in the area of online speech; and with the incentives set by this regulation, it opens the field for a race to the bottom. While out-of-court dispute settlement mechanisms usually aim at a consensual solution, placing emphasis on interests, rather than on the legal positions of the parties or on the rights asserted, free speech disputes are strictly normative and do not lend themselves to a settlement by private bodies, but are reserved for the judiciary. Moreover, most platforms have established appeals mechanisms for their users already allowing for a second review. By further extending this redress mechanism to decisions based on the platforms’ community standards, the DSA frustrates existing ‘flagging’-systems established by the platform providers, and thereby doing a disservice to its own goals. In the outlook the author proposes to modernize and build on the existing infrastructure of the judiciary to address needs of private persons to pursue their rights and to ensure the quality of process and decision, rather than duplicating the existing court system by adding a redress system of private alternative dispute resolution (ADR) bodies.