For instance, article 12 of the DSA is likely to influence how platforms’ terms and conditions are written, as it directs platforms to inform users publicly, clearly, and unambiguously, about the platform’s content moderation policies and procedures, including the roles played by algorithms and by human review. The DSA does provide a definition of illegal content but aims at harmonizing due diligence obligations of the platforms, and how they address the issue. If the French bill becomes law, platforms will have to make public the resources devoted to the fight against illegal content, and will have to implement procedures, as well as human and technological resources, to inform judicial or administrative authorities, as soon as possible, of actions taken following an injunction by these courts or authorities. France is currently anticipating the DSA by amending its JLaw for Confidence in the Digital Economy. Member States have each their own legal definitions. In the European Union, several instruments, such as the revised Audiovisual Media Services Directive and the upcoming Regulation on preventing the dissemination of terrorist content online, address harmful, illegal content. Both the European Court of Justice and the European Court of Human Rights have addressed the issue of illegal content. However, such legal corpus is far from being homogeneous. The law of the States remains thus the ultimate arbiter of the illegality of content. The Oversight Board’s decisions are binding on Facebook, unless implementing them violates the law. This independent body has for its main mission to issue recommendations on Facebook’s content policies and to decide whether Facebook may, or may not, keep or remove content published on its two platforms, Facebook and Instagram. public company Facebook and a private court of law, with powers to regulate the freedom of expression of Facebook and Instagram users around the world. Dubbed by some as “Facebook’s Supreme Court,” its nature is intriguing, appearing to be both a corporate board of the U.S. A few months earlier, the creation of Facebook’s Oversight Board (“the Oversight Board”) was met with skepticism, but also hope and great interest. Article 47 of the DSA would establish the European Board for Digital Services, which will independently advise the Digital Services Coordinators on supervising intermediary services providers. Whether this heightened scrutiny may lead illegal speech to migrate to smaller platforms remains to be observed.Įach Member State will design its Digital Service Coordinator, a primary national authority ensuring the consistent application of the DSA. Very large platforms, defined by the DSA as ones providing monthly services on average to 45 million active users in the European Union, will face heightened responsibilities, such as assessing and mitigating risks of disseminating illegal content. This new Regulation is likely to dramatically change how online platforms, particularly social media platforms, moderate content posted by their users. This new horizontal framework aims at being a lex generalist which will be without prejudice to the e-Commerce Directive, adopted in 2003, and to the Audiovisual Media Services Directive, revised in 2018. The European Union Commission published on December 15, 2020, its Proposal for a Regulation on a Single Market For Digital Services (Digital Services Act, “DSA”).
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