The Digital Services Act as seen from the European Periphery

 

Jenny Orlando-Salling^[1] (PhD Fellow in Law at iCourts, Faculty of Law, University of Copenhagen, Denmark)

&

Louisa Bartolo [2],[3] (PhD Candidate at the Queensland University of Technology Digital Media Research Centre, Australia, and a student member of the ARC Centre of Excellence for Automated Decision-Making & Society)

The ‘European Union’ is an idea that people project things onto. It also has a more material existence as a collection of countries with vastly different histories, laws, cultures, resources, and unequal degrees of power. The implementation of the EU Digital Services Act in the smallest EU member state, Malta, offers a window into what happens when idea and reality collide.

 

Introduction

“We have an opportunity to create a new global golden standard for tech-regulation that will inspire other countries and regions” – Christel Schaldemose (Danish MEP and lead rapporteur on the Digital Services Act)

As the European Union (hereafter, ‘EU’) positions itself as a global leader in digital regulation, it is more important than ever to challenge narratives that flatten disparities within the bloc. The disparities plaguing the bloc have very real implications for the nature and success or otherwise of regulatory implementation. Building on political and legal scholarship related to core-periphery dependencies within the EU, and extending beyond the prism of (Western) Eurocentricity that has limited the debate, in this blogpost we offer an analysis of the preliminary stages of the implementation and enforcement of the EU Digital Services Act (hereafter EU DSA) in the EU’s smallest member state, Malta, a former British colony, considered part of the EU’s southern periphery having acceded to the bloc in 2004 (Kukovec 2012, p. 1; Kukovec 2015, p. 408). As the hard work of implementation begins, we use the Maltese case to argue that before championing the effects of EU regulation beyond the EU’s borders there is an urgent need for a more honest search within them.

Core-periphery dynamics within the European Union

As it has expanded from its original six to 27 member states, scholars have noted that the EU has developed into a “dualist political economy” characterised by “a core of highly developed economies forming a golden triangle, and a southern and eastern periphery with a number of countries between core and periphery” (Laffan, Schweiger & Magone 2016, pp.298-9). The core-periphery divide is not just economic, it has an important political dimension, with several countries in the periphery tending to score lower than their counterparts in the core on governance indicators like regulatory effectiveness, rule of law, and control of corruption (Farkas 2019). While there remains some disagreement among scholars about exactly how to classify countries as ‘core’ or ‘periphery’, for the purposes of the article, we follow Magone, Laffan and Schweiger’s (2016) classification. As such, “core” countries are here taken to be, for example, Germany, France, the Netherlands, Austria, Denmark, Sweden, Finland, Belgium and Luxembourg whilst countries of the periphery include Hungary, Portugal, Malta, Greece, Bulgaria, Latvia, Poland, Slovenia and Estonia. The latter are usually those member states that joined the EU in (and after) 2004.[4]

The core-periphery cleavage was put on display and further intensified during and since the Eurozone crisis in 2009, which was managed in an overwhelmingly “hierarchical” way (Laffan, Schweiger & Magone 2016, p.301), with peripheral ‘debtor’ countries like Greece, Portugal and Cyprus subject to harsh bailout terms. Importantly, the way the Eurozone crisis was discussed and ‘narrativized’ also fueled resentment and deepened cleavages: the role played by structural EU factors like the deregulation of financial systems was downplayed, and the overwhelming narrative instead was that the crisis was a product of “mistakes made by lazy countries” in the periphery, lacking discipline (Casagrande & Dallago 2023; see also Becker et al. 2023; Laffan 2017). Whilst the Eurozone crisis and its fallout was a highly significant event, the fragility of European integration had been evident before. As Schulz-Forberg and Strath (2010, p.1) put it, “[t]here has been, from the 1980s… growing tension between a teleological rhetoric describing an unavoidable integration marked by a supposedly long-term trend of an unrestrainedly progressive project, and the actual institutional capability to respond to and implement the rhetoric.”

In this piece, we draw on the Maltese experience to foreground the heterogeneity and inequality that marks the EU and reflect on its implications for the implementation of the EU DSA. Outside of the EU legal sphere, there is a growing body of scholarship that challenges the ‘Eurocentricity’ of platform governance norms and debates, drawing attention to the specificities and under-representation of non-European ‘global majority’ countries and voices, especially located within the Asian and African continents (e.g., Arguelles 2019; De Gregorio & Stremlau 2021; Karanikolas 2020). These efforts work to ‘provincialize’ the European experience, puncture its claims to universality (Chakrabarty 2020), and de-centre those narratives away from self-perpetuating Western approaches that do not account for a diversity of experience as well as perspectives. As two scholars from the EU’s southernmost periphery, Malta, what we are contending here is complementary to these efforts: that the idea of ‘Europe’ that is embedded within Eurocentricity means that Eurocentric perspectives on platform governance also falter when it comes to understanding and addressing the challenges faced by several ‘European’ countries within the EU bloc that operate within a core-periphery dynamic (Agnew 2001; Biebuyck & Rumford 2012; Reynolds 2012, Kukovec 2015). The EU, as the EU DSA also suggests, prides itself on commonality and inclusivity of diversity (Weiler, 1991 in Kukovec 2012). However, this commonality exists within a hierarchy.

The pitfalls of maintaining the ‘Harmonisation Fiction’

The EU DSA aims to fulfil one of the primary objectives of the internal market, and a primary objective and justification for European integration, and that is: harmonisation (Maletić, 2013).^[5] The introductory text of the EU DSA begins by noting that: “Member States are increasingly introducing, or are considering introducing, national laws” related to digital services, “imposing, in particular, diligence requirements for providers of intermediary services as regards the way they should tackle illegal content, online disinformation or other societal risks.” (Preamble (2) Digital Services Act 2022). But these “diverging” national approaches are positioned as a threat to the EU’s vision of harmonisation: they “negatively affect the internal market” as envisaged in Article 26 of the Treaty on the Functioning of the European Union (TFEU) and frustrate efforts to fashion a coherent approach to regulating internet-based activity across the bloc (Preamble (2) Digital Services Act 2022). In response, the EU DSA promises “a targeted set of uniform, effective and proportionate mandatory rules… at the Union level,” which are described as a “necessary” corrective to “fragmentation” (Preamble (4) Digital Services Act 2022). The goal of harmonisation notwithstanding, it remains the case that the EU DSA’s implementation is contingent on national, judicial, administrative and regulatory bodies and national legal, political, social and cultural contexts in each member state (Eschborn 2022; Husovec 2022).

Muted voices from the EU’s periphery: Implementing the EU DSA in Malta

At a little over 300 square kilometres, and with just under half a million inhabitants, Malta is the smallest EU member state and a productive ‘lab’ for evaluating the implementation of the EU DSA outside of the EU’s ‘core’. Malta joined the EU in 2004 and Maltese citizens report overwhelmingly positive feelings about membership (European Commission Representation in Malta, 2023). Located at the southernmost periphery of the EU and firmly in the middle of the Mediterranean Sea with geographic proximity to the Middle East and North Africa, Malta is the only country in the EU with a Semitic language. To be Maltese is to confront the relational, always constructed nature of what it means to be ‘European’ (and what it means to be ‘Other Europe’) (Gerber 2010, p.245). It is far from clear where Malta sits within ostensibly Western ‘Eurocentric’ perspectives (see Lewicki 2023 on the Eastern European experience).

Under-resourced, overburdened implementers. Reflecting on Malta’s approach to complying with EU regulation, Professor Ivan Sammut, the Head of the Department of European and Comparative Law at the University of Malta notes that Malta often absorbs EU regulation without much reflection as to context. He elaborates that it “seems to have lost the initiative to come up with local legal initiatives,” even when it comes to EU directives (where there is in theory more flexibility for Malta to localise its approach) (Sammut 2021, p.6). Indeed, a case study on consumer protection law corroborates this argument, concluding that: “Perhaps the worst unintended consequence of EU membership was the complete absence of any further interest or initiative by the Maltese authorities in the consumer protection field in the years following membership up till the present day” (Fabri 2021, p.148). Instead, the approach is to “cut-and-paste” EU directives (Fabri 2021, p.153), while “purely domestic consumer law and local creative policy initiatives remain in hibernation, seemingly abandoned” (Fabri 2021, p.154). As the author notes, this raises serious concerns considering Malta’s weak consumer associations, and given the vulnerability of consumers in the face of powerful business interests in Malta and elsewhere (Fabri 2021). Taking the core-periphery dynamic into consideration, there is a need to appreciate why such an approach has been adopted in Malta: localising EU directives and developing national initiatives to complement them requires institutional support, and significant resources. Regulatory and administrative authorities in Malta report the significant increase in workload that EU membership has brought on even just to meet these basic standards of compliance, leading scholars to question whether membership has placed “a burden which time may prove as too great in a country with such limited administrative capacity.” (Harwood 2014, p.212). These limited administrative capacities emerge from (and are the legacy of) a particular historical context.

In the case of the EU DSA, we can point to at least three bodies or institutions that will be expected to play a critical role in the Regulation’s implementation in Malta: the Malta Communications Authority (Malta’s designated Digital Services Coordinator), the judicial system, and the national Cyber Crime Unit. All three are under-resourced and over-burdened considering the scale of the task. The Malta Communications Authority has historically dealt mainly with e-commerce, competition and consumer rights, which are of course relevant but only partial in light of the EU DSA’s scope. It is at present unclear how the Malta Communications Authority will approach thorny questions related to speech rights and other fundamental rights arising from the DSA’s implementation. In the case of Malta’s judicial system, structural problems, including under-resourcing by the executive branch, have resulted in significant court delays (Calleja 2023). Malta has some of the worst delays in Europe – with recent data showing that cases can take up to eight times as long as the EU average to be resolved (Xuereb 2020). In its current shape, it is virtually unimaginable that the judicial system will be in a position to take on the additional load of determining the legality or illegality of online content in the way envisaged by the EU DSA. The third key body likely to play a significant role in the implementation of the regulation is likely to be the national Cyber Crime Unit, which has to date been the main Maltese body interfacing with large online platforms in relation to criminal online content. A 2016 EU evaluation highlighted concerns about the Unit’s resourcing (Schembri Orland 2016), and it is unclear that the current contingent of 17 police officers (The Malta Independent 2022) would be able to handle significant increases in workload.

Another concern relates to the ‘trusted flagger’ position envisaged by the EU DSA. According to Article 19, a ‘trusted flagger’ is an entity within each member state responsible for flagging illegal content on digital platforms. Although any EU citizen can flag such content, flagged content by ‘trusted flaggers’ are dealt with as a priority by platforms. Trusted flaggers must apply to, and get selected by, the Digital Services Coordinator in their respective country and must meet the conditions of having “particular expertise and competence for the purposes of detecting, identifying and notifying illegal content”, represent “collective interests”, be “independent from any online platform” and conduct their work of “submitting notices in a timely, diligent and objective manner” (Art. 19, Digital Services Act 2022). Trusted flagging predates the EU DSA, and as a practice that has long been used by a variety of platforms, raises a host of thorny questions, not least about the legitimacy and inclusivity of the trusted flagging process and its effectiveness in practice (see Appelman & Leerssen 2022). These issues are further compounded in Malta because it is difficult to imagine which entity could meet the criteria to perform such a function. There are no NGOs that focus on digital rights exclusively or to a significant degree in Malta, and the idea of an entity flagging content with (actual or perceived) “objectivity” on the island is hard to envisage.

Without essentialising Malta or dismissing recent trends that may indicate things are changing somewhat, party politics and government power permeates Maltese society, and the island’s size, its history and political culture mean that groups seeking influence are often willingly or unwillingly drawn into the political fray (Briguglio et al. 2023; Harwood 2017).  As Vassallo (2015) laments following fieldwork with Maltese social, human rights and environmental interest groups, political partisanship runs deep in Malta: “It seems that every single entity or issue on the island, NGOs not excluded, is understood in terms of partisan politics” (Vassallo 2015, p.145). The concentration of power in a ‘trusted flagger’ in the context of such deep-rooted and all-pervasive political partisanship presents a risk of undue political influence and is likely to engender distrust. The tendency for fragmentation and infighting among Maltese NGOs (Vassallo 2015) is also likely to undermine efforts to build collective buy-in around a single trusted flagger. In interviews, a Maltese NGO representative stated that “Domestic culture is miles apart from the European model” and another that Maltese “culture is essentially Mediterranean and such rival competition among people and groups can be found in Cyprus, Sicily and Southern Spain.” (Vassallo 2015, p.145) Interestingly, the NGO representative stated that “More than a barrier, this is a cultural phenomenon that needs to be addressed.” (Vassallo 2015, p.145). The ‘trusted flagger’ provisions in the EU DSA are an example of the way in which the Regulation is insensitive to these cultural phenomena, with potentially serious consequences.

No ‘European’ standard of legality. The EC centered the EU DSA on the principle that “what is illegal offline should be illegal online.” In theory, the illegality threshold appears measured, even minimalist. Indeed, the opening recitals of the Act prioritise the focus on illegal content as a way of limiting regulatory overreach as well as the undue suppression of legitimate speech and behaviour.^[6] And yet, the idea of a European standard of free speech and common threshold of ‘legality’ that is speech- and rights-preserving is deeply questionable. Malta is one of a number of EU countries that contradicts this idea given its laws criminalising ‘disinformation’ (O Fathaigh et al. 2021), ongoing concerns about its treatment of clearly satirical content (Vassallo 2023), and its complete prohibition of abortion, including the procurement of abortion medication, which takes place online for those unable to travel abroad (Doctors for Choice Malta). The tension here is that the EU DSA is supposed to protect fundamental rights but there are a number of laws on the Maltese books that would sit uneasily with such rights. Those subscribing to a reading of ‘European’ fundamental rights that is protective of satirical speech[7] and abortion, are left in the peculiar position of hoping that the EU DSA will not work as intended in Malta, and that human rights will be safeguarded not because of but despite the EU DSA. Ironically, the under-resourcing of Maltese implementers, and the limits that this would impose on their ability to report content that is illegal according to a faithful reading of Maltese law might turn out to be rights-protecting in a number of instances.

The irony remains: – just months after the European Parliament voted to include abortion as a fundamental right in the EU Charter of Fundamental Rights (Euronews 2022), it co-legislated the EU DSA, which could theoretically create a double layer of criminal liability for abortion seekers in in Malta. It is not difficult to extend the argument beyond the Maltese context, as draconian laws are passed across the EU (e.g., Hungary and LGBTQ as well as media freedoms). Could the EU DSA aggravate worsening rights standards in illiberal, autocratic and authoritarian contexts that are a lived reality for many Europeans?

Turning back to Malta, if the EU DSA is to even partially work as intended then there is reason to be worried about takedown requests that contradict what many would consider to be legitimate speech or other human rights (e.g., to abortion). Determining how online content stacks up against laws on disinformation, satire and abortion is far from straightforward even within Malta, but the laws are there and can be exploited by those with the power to silence criticism or block access to reproductive rights. Platforms are of course able to push back on illegitimate requests by national regulators and it is arguable that they are duty bound to do so. But would they have the capacity and sense of urgency to do so in the case of Malta, a tiny ‘market’ with a unique “low resource” language (Nicholas & Bhatia 2023), where platforms face little public pressure or scrutiny? In 2017, Malta’s Cyber Crime Unit conceded that they sometimes provide social media platforms with translations and “the necessary local context” when making data requests (Pace 2017), raising serious concerns about the capacity of platforms to challenge illegitimate takedown requests based on disputed readings of Maltese law. There is need for far more scrutiny and transparency about platforms’ behaviour in response to takedown requests of illegal content from peripheral countries where large platforms don’t necessarily have the in-house resources, nor the impetus, to act as a check on abuses of power. Unfortunately, the EU DSA does not address, and in some way exacerbates, the risk that platforms will bow to dubious takedown requests in the case of countries like Malta.

If we ignore the very real disparities between EU member states in terms of their resources and their market importance to digital platforms, and assume a standard of legality that is legitimate speech- and rights- preserving, the EU DSA risks perpetuating a fiction of harmonisation at peripheral countries’, and their citizens’ – EU citizens’ – expense.

Way forward

Both research and formal evaluation of the EU DSA’s implementation must account for intra-EU disparities. This would go a long way towards taking down the silos that have marred academia and practice’s ability to view EU law as interconnected and inextricable to the social and political realms rather than as an elitist, exclusive and positivist exercise that draws on formalism to evade the hard questions posed by European integration. This piece ends with a call on academia from us that come from the periphery: engage critical approaches in analysis of digital regulation; extend beyond traditional case studies that overuse examples from the core, which lack nuance as comparative counterpoints; challenge traditional frames of reference to prioritise inclusivity; seek out comparative examples in the European periphery. The enterprise of self-reflection and reflexivity has never been more pressing. We cannot hope to be globally exemplary if we are still making, maintaining, and perpetuating ‘Other Europe’ within.

 

We are grateful to Dr Paddy Leerssen and Ilaria Buri for their excellent feedback and editorial guidance, which strengthened the final piece. Our thanks also go to Prof Elaine Fahey and Prof Carl Morch and attendees of the academic workshop entitled ‘A ‘Brussels Effect’ for EU Digital Governance? Legal, Political, and Economic Considerations’ held in Brussels in April 2023, where an extended version of this piece was presented and discussed. We are also grateful to Rachel Griffin for her insightful comments on an earlier version of this piece. Errors are our own.

This work forms part of a broader project that Jenny and Louisa are working on, which explores EU digital regulation through the core-periphery lens.

 

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Regulation

Digital Services Act 2022

 

^[1] Jenny Orlando-Salling is a PhD Fellow in Law at iCourts, Faculty of Law, University of Copenhagen. Her PhD research focuses on critical approaches to EU Law and looks at coloniality, history, memory and identity in European constitutionalism.

[2] Louisa Bartolo is a PhD Candidate at the Digital Media Research Centre at Queensland University of Technology, Australia. Her PhD research develops empirically grounded normative frameworks for algorithmic recommender systems. She is a student member of the ARC Centre of Excellence for Automated Decision-Making and Society in Australia.

[3] Jenny and Louisa contributed equally to this piece.

[4] It should also be noted if we were to account for regional disparities within countries it would also be important to acknowledge that there are peripheral regions within peripheral states as well as peripheral regions within core countries.

^[5] Articulated in Art. 114 TFEU, harmonisation is considered key to the advancement of the internal market and market integration.

^[6] It is worth noting that in parallel, the UK was engaged in a controversial debate about whether and how it should regulate ‘legal but harmful’ content and conduct on social media platforms in addition to illegal content – with many free speech advocates pushing for a narrow standard of illegality to guide decision-making.

[7] To be sure, as scholars like Alkiviadou (2022) and Godioli et al. (2022) have argued, the European Court of Human Rights has not consistently protected humorous and satirical expression.