News from Across the Sea #4

News from Across the Sea 4: Welcome to our first issue of 2025! One year after the DSA took full effect, we’ll take a look back at what we’ve accomplished so far and at some of the challenges that lie ahead...

News from Across the Sea #4:

Welcome to our first installment of 2025! One year after the DSA fully took effect, we’ll take a look back at what’s been achieved so far and at some of the challenges that lie ahead in the near future. What’s behind the decline in user numbers on major adult content platforms? We’ll review the discussions surrounding the German parliamentary elections and analyze the implementation of new Codes of Conduct.

DSA, Year 1: Achievements and Challenges:

One year after the DSA fully took effect, it’s a good time to take stock. Among its major successes, it’s worth noting that the complex oversight system envisioned by the law has been almost fully implemented. Almost all EU countries have appointed their Digital Services Coordinator—the authority responsible for ensuring compliance with the DSA—except with regard to the specific obligations of very large online platforms (VLOPs) and very large online search engines (VLOSEs); in turn, these authorities have established the European Digital Services Board, which has met 12 times so far on a monthly basis. On the positive side, large platforms and search engines are largely complying with their obligations to publish reports and provide information. Thanks to this, we now know more than we did a year ago about their operations and their content moderation systems. In addition, 25 VLOPs/VLOSEs were designated and are subject to more stringent due diligence obligations, as well as 20 trusted flaggers—that is, civil society organizations that receive priority treatment from the platforms when they report illegal content. The European Commission has launched multiple enforcement actions against the platforms for potential non-compliance. So far, in one of these cases, an agreement was reached to discontinue the TikTok Lite rewards program. In another case, brought against X, a preliminary conclusion was reached that the company had violated several provisions of the law, although the proceedings are not yet concluded. Delegated legislation was also adopted regarding transparency reports, risk mitigation in electoral contexts, and independent audits. The operation of six out-of-court dispute resolution bodies was also authorized, so that users can resolve their disputes with platforms free of charge. Among the major shortcomings are the gaps in the implementation of policies regarding platform data access for researchers (Article 40) and the lack of definitions surrounding the concept of systemic risks (Article 34)—a central element in the new co-regulatory paradigm advocated by the EU— a challenge that we have already warned about and continue to address. It comes as no surprise, then, that the reports on risk detection and mitigation published in November turned out to be generic and almost devoid of data.

VLOPs on the Run:

According to news reports, WhatsApp’s “Channels” feature reportedly had more than 45 million monthly users in the EU—that is, the threshold for being considered a very large online platform (VLOP) under Article 33 of the DSA. It should be noted that, according to the law’s own definitions, the messaging feature is not covered by the DSA. Meanwhile, the navigation platform Waze has also reportedly reached the magic number that would classify it as a VLOP. The official designations will be issued in the coming months. Meanwhile, the pornographic sites Pornhub, Stripchat, and Xvideos—designated as VLOPs in December 2023—reported a sharp decline in their monthly user counts, with figures nearing 26 million. It is unlikely that half of European pornography consumers have suddenly stopped using it, so this could be a ploy to circumvent the stricter obligations arising from their designation as VLOPs. According to Article 33(5) of the DSA, a platform may lose its VLOP status if it maintains, for one year without interruption, a user count below the legally mandated threshold. The platforms explain that the sharp decline in the reported number of users is due to the difficulty of determining the geographic origin of those accessing their sites using their browser’s incognito mode.

DSA and electoral processes:

There were no reports of significant progress in the proceedings brought by the European Commission against TikTok for possible violations of the DSA, in connection with the Romanian presidential elections suspended last December. We still don’t know what happened in Romania, but what seems clear is that, the DSA alone is not enough to protect democracy. On February 23, parliamentary elections were held in Germany amid great uncertainty over the events in Romania, pressure from the European Commission on national authorities and Elon Musk’s explicit support for candidate Alice Weidel of the far-right Alternative for Germany (AfD) party, which some considered an undue interference that could trigger the application of the DSA. In fact, a Berlin court upheld a lawsuit filed by Democracy Reporting International against refusal by Platform X to provide access to data that would make it possible to detect potential foreign interference in the electoral process. The decision was appealed by the platform.

Incorporation of Codes of Conduct into the DSA:

The Code of Practice on Disinformation and the Code of Practice on Illegal Online Hate Speech have been officially incorporated as Codes of Conduct under Article 45 of the DSA. This means that the obligations voluntarily undertaken by the companies that have signed them will become obligations under the DSA. This is significant because it allows for a comparison between the vague obligations to identify and mitigate risks under Articles 34 and 35 of the law and more specific commitments and requirements. There are, however, some problematic aspects regarding these Codes. As Griffin and Vander Maelen explain here and here, their voluntary nature is controversial: from the outset, authorities pressured platforms to sign them, under the threat of stricter regulations, and set the course that their content should take. Furthermore, the authors argue that there are positive and negative incentives that make it too costly to remain on the sidelines. The Codes can serve as “carrots” for companies: subscribing to them is the easiest way to demonstrate compliance with the DSA’s risk mitigation obligations. At the same time, they also function as “sticks”: the European Commission could use its authority to investigate non-compliance (and impose hefty fines) to force reluctant platforms to join. Thus, for example, Article 75 of the DSA proposes adherence to the Codes as a remedy for noncompliance with the regulation; on the other hand, according to Recital 104, rejecting an “invitation” from the Commission to participate in a Code could be indicative of non-compliance. Whether or not the Codes of Conduct are voluntary is essential, insofar as they contain certain obligations that the state could not legitimately impose on platforms. For example, the Code of Conduct on Disinformation requires the “demonetization of disinformation” and includes commitments to adopt various policies against the dissemination of disinformation, regardless of whether such content is legal or illegal. As for the Code of Conduct on Hate Speech, Alkiviadou explains that the definitions used are much broader than current human rights standards on the matter and that the Code contains metrics that encourage the over-removal of content, such as the 24-hour deadline for removal and the commitment to review at least 50% of the reports received.

What Are We Reading?

• The excellent report by AlgorithmWatch and DFRLab quantifying the influence of the “Musk Effect” in the campaign discourse surrounding the German parliamentary elections in February
• The Opinion of the European Ombudsman criticizing the European Commission’s general presumption of confidentiality regarding risk assessment and mitigation reports under the DSA. Thank you very much for reading this far; we’ll see you again soon. Until next time!