Towards a better notice and action mechanism in the DSA

Abstract

The adoption of the DSA will bring important changes in the content moderation landscape in the EU. By harmonising, codifying, and further developing a notice and action mechanism, the DSA addresses many content moderation-related challenges, and in so doing also affects the balance that existed thus far between the protection of victims of illegal content, the safeguarding of fundamental rights and the economic interests of hosting service providers. This contribution answers the following question: Does the notice and action mechanism of the DSA create an adequate balance between the various involved interests? As far as the economic interests of hosting service providers are concerned, the harmonisation of the mechanism should certainly be a welcome change for economic operators. Further, even though the DSA contains many new procedural obligations, they entail reasonable efforts. The requirement of a harmonised, efficient, effective and user-friendly notification procedures should fix the existing limitations and can be seen as an important step for the protection of the victims’ interests. However, the lack of an obligation to provide a statement of reasons to notifiers is a missed opportunity. Finally, the safeguards of content providers’ fundamental rights are also enhanced. Not only through the creation of new redress mechanisms, but also through the hosting provider services’ obligation to provide decisions that are objective, non-arbitrary, diligent and timely, and to justify them through a statement of reasons. Although the applicability of the safeguards is still too narrow in some respects, the new safeguards and their requirements should improve the current situation in which hardly any binding legal provisions exist. All in all, even though it contains various shortcomings that prevent it from truly striking an adequate balance, the DSA’s notice and action mechanism does represent a significant step forward for all the parties that have a stake in the moderation of online content.