Using Terms and Conditions to apply Fundamental Rights to Content Moderation: Is Article 12 DSA a Paper Tiger?

In September 2021, the Verfassungsblog and the Max Planck Institute for Innovation and Competition co-hosted an online symposium, “To Break Up or Regulate Big Tech? Avenues to Constrain Private Power in the DSA/DMA Package”.

“The concentration of private power in the digital realm is not tenable – on this there is consensus. It extends across domains of private power, ranging from power over markets and consumers’ behaviour, power over private rule-making to power of and over opinion. The European Union’s Digital Services Act and Digital Markets Act set out to bridle these dimensions of power, but are they up to the task? In this Online-Symposium, co-hosted with the Max Planck Institute for Innovation and Competition, authors from various legal disciplines enquire into this pressing regulatory concern”.


IViR – DSA Observatory researchers Naomi Appelman, João Pedro Quintais and Ronan Fahy contributed to the debate with an article on Article 12 DSA proposal and using Terms and Conditions to incorporate fundamental rights into content moderation.

They discuss whether Article 12 DSA, and some of the proposed amendments, requires online platforms to apply EU fundamental rights law and to what extent it may curb the power of Big Tech over online speech.

Disclaimer: Dear reader, please note that this commentary was published before the DSA was finalised and is therefore based on anoutdated version of the DSA draft proposal. The DSA’s final text, which can be here, differs in numerous ways including a revised numbering for many of its articles.

Read the full article here.