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News from Across the Sea #7

News from Across the Sea 7: Welcome to the seventh issue of our bimonthly newsletter on the European Union’s Digital Services Act (DSA). In this issue, we’ll revisit the agenda on the protection of minors online

By Nicolás Zara

News from Across the Sea #7:

Welcome to the seventh issue of our bimonthly newsletter on the European Union’s Digital Services Act (DSA). In this issue, we’ll revisit the topic of online child protection and review some notable developments regarding decisions by the Court of Justice of the European Union, the publication of new risk mitigation reports, and the regulation of key provisions of the DSA.

Protecting Children Online: Can Anyone Think About Freedom of Expression?

The European Commission adopted its Guidelines on the Protection of Minors under the DSA. In addition, its president, Ursula von der Leyen, announced that she will commission a report to evaluate banning minors under a certain age from using specific social media platforms. In the previous edition, we already highlighted the sense of urgency to take action regarding the protection of children online. This effort is part of a global trend of initiatives aimed at protecting children and adolescents in the digital space, whether through an absolute ban on the use of social media for certain age groups or by imposing special obligations on certain websites regarding minors, such as age verification of their users. In a highly polarized world, measures to protect minors online seem to be the only policy capable of generating consensus. Even the U.S. Supreme Court, historically hostile to such initiatives on the internet, upheld the constitutionality of a Texas law requiring certain websites that publish sexually explicit content to verify that their visitors are at least 18 years old. The decision was not without criticism nor doubts about its potential consequences. At CELE, meanwhile, we have already warned regarding the privacy risks that age verification solutions may entail.

Risk Mitigation Reports from Companies Operating Pornographic Sites

In compliance with their obligations under the DSA, the VLOPs designated in December 2023—which operate sites that distribute pornography (Stripchat, Pornhub, and Xvideos)—submitted their risk assessment and mitigation reports. You can find all the reports here. Based on the trends and regulations described in the previous section, it is expected that these platforms will need to implement age verification measures to prevent minors from accessing their sites and that their reports will be rigorously examined by the authorities.

Entry into Force of the Codes of Conduct

In July, the new Codes of Conduct on disinformation and hate speech went into effect. We discuss in this post some of the most problematic aspects of these codes.

Data Access for Researchers: The Starting Point

In July, the European Commission adopted the delegated legislation regarding access to data for researchers under Article 40(4) of the DSA. This is a long-awaited milestone for the academic community; a regulation that, if successfully implemented, could provide access to a vast amount of information about how platforms operate—information that remains outside the public domain to this day. At CELE, we have been following this discussion for some time now and have been participating—together with InternetLab—in the consultation process for this regulation.

The DSA in the Courts

In early September, the Court of Justice of the European Union (CJEU) issued two important rulings regarding the DSA. First, it ruled in favor of Meta and TikTok in their challenges to the amounts of the supervision fees they are required to pay under Article 43. These fees, which are levied on services designated as very large online platforms and search engines (VLOPSEs), are intended to cover the costs incurred by the European Commission in supervising compliance with the DSA. The Court of Justice of the European Union held that the manner in which the amount of these fees was set (in the context of implementing decisions, rather than through delegated legislation) is not appropriate. The European Commission now has twelve months to set forth, through delegated legislation, the methodology for calculating the amount of the oversight fees. Until then, the effects of the judgment will remain suspended, given the serious impact that the refund of the fees would have on the Commission’s normal performance of its supervisory functions under the DSA. The other significant judgment was issued in the case Zalando v. European Commission, in which the Court rejected the challenge brought by the aforementioned German e-commerce service against its designation as a very large online platform (VLOP) under the DSA.

Separated by an Ocean: New (Old) Tensions with the United States

In July, the Judiciary Committee of the U.S. House of Representatives released an incendiary report that describes the DSA as “a censorship law” implemented to silence conservative voices. On September 4, the Committee held a hearing to discuss “European threats to freedom of expression and innovation.” The hearing featured testimony from, among others, British MP Nigel Farage, who spoke out against the UK’s Online Safety Act, and former UN Special Rapporteur on Freedom of Expression David Kaye, who defended the right of European nations to democratically discuss their disagreements and set their own standards regarding the limits of freedom of expression. A group of European scholars published a letter in response to the Committee’s allegations. Some reports indicate that the United States is making the weakening of European laws regulating platforms a condition for sealing the trade agreement with Europe on tariffs. We expect more chapters in this saga.

What Are We Reading?

  • This article by Jakob van der Kerkhof on the impact on freedom of expression of national regulators with the authority to enforce the DSA.
  • This article by David Sullivan and Jason Pielemeier on the evolution of online safety laws, the importance of analyzing them from a human rights perspective, and the role of Trust & Safety teams in implementing these standards in a manner that respects those standards.
  • This research by Paddy Leerssen, Anna van Duin, Iris Toepoel, and Joris van Hoboken for the Institute for Information Law (IViR, University of Amsterdam) on private enforcement of the DSA. Thank you very much for reading this far; we’ll be in touch soon. See you next time!