A Medley of Public and Private Power in DSA Content Moderation for Harmful but Legal Content: An Account of Transparency, Accountability and Redress Challenges

Abstract

This paper analyses the challenges associated with the co-regulatory arrangement of Articles 34 and 35 of the Digital Services Act (DSA) for the mitigation of the risks posed by harmful but legal content. Filling a gap in the existing literature, this paper focuses on the implications of the public-private cogeneration of content moderation policies for harmful but legal content resulting from the implementation of the DSA. This paper highlights three challenges deriving from the ‘’hybrid’’ public-private governance of harmful speech in the context of the DSA. First, the potential lack of transparency on public influence over private content moderation policies. Second, the risks of unaccountability of public bodies who are able to steer private content moderation policies to pursue public policy objectives. Third, the lack of effective redress available to users against interferences with their legal speech. Building on these considerations, this paper puts forward two main arguments. First, the governance model for online speech of the DSA poses challenges that are not addressed by the current legislative framework. Second, the public-private dichotomy of EU fundamental rights law is not fit for purpose in the face of hybrid regulatory models. Based on the identified challenges, the paper discusses the main shortcomings of the legislative framework, with the aim to define a path for future research.