Senior Legal Fellow, Future of Free Speech (Justitia)
The Digital Services Act (DSA) constitutes the new legal horizontal framework in the EU regarding the provision of online services. It formally came into force on 16 November 2022. However, a significant number of rules and obligations included in this Regulation will become enforceable after 17 February 2024, the deadline for Member States to designate national authorities (Digital Services Coordinators, DSC) in charge of overseeing their implementation.
One of these provisions is included in article 21 DSA, which recognizes a new right for users of online platform services to select a certified out-of-court dispute settlement body, i.e., an independent third party, in order to resolve disputes relating to decisions taken by the provider of the online platform service. These bodies need to be certified by national DSCs. Platforms’ decisions will be scrutinised by the mentioned bodies on grounds both of legality (determinations adopted because the information provided by the recipients constitutes illegal content) and private content policies (when users’ behaviour or content is considered incompatible with the terms and conditions of the provider). As it has already been pointed out, the DSA enlarges the market for dispute resolution, with the complainant being able to choose among different (private, and sometimes public) certified dispute resolution bodies.
This mechanism is applicable not only to cases where content has been disabled, removed, or restricted in terms of visibility, but also vis-à-vis decisions involving suspension or termination of the service, suspension or termination of accounts, or restrictions to monetization. Also, this safeguard does not require a prior exhaustion of internal complaint-handling mechanisms, while not excluding them either.
Settlement decisions are not binding, although their lack of good-faith engagement on substance may have consequences, since online platforms and particularly VLOPs are subjected to broad scrutiny regarding the way they incorporate different types of external “assessments” into their content moderation practices, particularly when it comes to risk assessment and mitigation obligations under the DSA.
Relation with existing EU legislation
The out-of-court mechanism established by the DSA is preceded by already-existing EU general legal provisions to facilitate the resolution of consumer disputes in a quick, accessible and effective manner, even though the achievement of such goals has been put in question by some experts. ADR Directive (Directive 2013/11/EU on alternative dispute resolution for consumer disputes) establishes a general legal framework regarding consumer alternative dispute resolution mechanisms.ODR Regulation and P2B Regulation (Regulation 524/2013 and Regulation 2019/1150 respectively) provide a European online dispute resolution platform to settle cases between consumers and traders online and promote fairness and transparency for business users of online intermediation services, respectively. From a more specialised perspective, Copyright Directive (Directive 2019/790) establishes that Member States shall provide that disputes concerning certain provisions of the Directive may be submitted to a voluntary, alternative dispute resolution procedure. While Audiovisual Media Services Directive (Directive 2018/1808) also incorporates the obligation for Member States to ensure that out-of-court redress mechanisms are available for the settlement of disputes between users and video-sharing platform providers.
Paragraph 9 of article 21 DSA indicates that the provisions included in this article are without prejudice to ADR Directive. It is important to note that such Directive covers specific areas not contemplated by article 21 DSA such as detailed requirements regarding the expertise, independence, and impartiality of natural persons in charge of ADR. Moreover, article 3 of the same ADR Directive also establishes that “if any provision of this Directive conflicts with a provision laid down in another Union legal act and relating to out-of-court redress procedures initiated by a consumer against a trader, the provision of this Directive shall prevail”.
Who can use the mechanism?
According to article 21 DSA, the right to an out-of-court settlement of disputes is granted to “recipients of the service, including individuals or entities that have submitted notices”. According to article 3.b) DSA, a recipient of the service is any natural or legal person who uses an intermediary service, in particular for the purposes of seeking information or making it accessible. Besides, individuals or entities who have submitted notices are in particular, and according to article 16 DSA, all those who have notified service providers of “the presence on their service of specific items of information that the individual or entity considers to be illegal content”, independently from the subsequent actions taken by the service provider on such basis. It is important to note, regarding this second area, that according to article 6 DSA the notice-and-action mechanism excludes the application or liability exemptions if the illegal content is not removed expeditiously and thus exposes platforms to third party claims. This legal provision has an obvious impact on the way platforms will make content adjudications.
The language (as quoted) of the DSA in this area opens the door to important questions. For example, whether the original author of a social media post re-published on a different platform could also be deemed entitled to dispute a decision affecting such content, or to what extent the specific nature and role of trusted flaggers would require a different approach when it comes to disputes arising from their notifications. It is important to note that trusted flaggers “acting within their designated area of expertise” might make assessments comparable or even more thorough and informed than those potentially made by a less specialised settlement body. Does it make sense to subject them to the same redress or dispute mechanisms as other users? To make things more confusing, article 21 DSA already gives online service providers the capacity to refuse to engage with an out-of-court dispute settlement body “if a dispute has already been resolved concerning the same information and the same grounds of alleged illegality or incompatibility of content”. The DSA however does not provide any clear indication regarding the mechanisms that a user who has seen their standing denied can use. DSCs do not seem to have been conceived as appeal instances vis-à-vis decisions taken by platforms in this area, although users may always be able to report an improper functioning of settlement bodies. Otherwise, there is also a possibility to take the claim before a national court, even though competence of the judiciary in this area is not explicitly established.
Certification of settlement bodies
As mentioned already, out-of-court settlement bodies are to be certified by the DSC of the Member State where they are established, for a maximum period of five years.
Conditions to be met to obtain such certification are established in paragraph c) of article 21 DSA. However, it is also necessary to take into account the already mentioned general EU law provisions regarding alternative dispute mechanisms.
All these elements will need to be considered by the corresponding DSC when deciding on accreditation requests.
According to the DSA, the body must be “impartial and independent, including financially independent, of providers of online platforms services, as well as of recipients of the service”. ADR Directive establishes that members of ADR bodies must be appointed for a term of office of sufficient duration to ensure the independence of their actions and are not liable to be relieved from their duties without just cause. It also a priori excludes procedures before dispute resolution entities where the natural persons in charge of dispute resolution are employed or remunerated exclusively by the individual trader, although it also allows Member States to decide to authorise such procedures as ADR procedures. The latter could open the door to a hypothetical authorisation by State authorities via legislation/regulation of ADR bodies “owned” by online platforms, inasmuch as certain safeguards would be respected (as included in article 6.3 of the ADR Directive).
According to the DSA, members of the settlement body must be remunerated in a way that is not linked to the outcome of the procedure. However, it is important to take into consideration the fact that, in the model of the DSA, the recipients of the service are the ones entitled to choose the out-of-court settlement body to be used in each case. This might incentivize a possible approach in favor of the rights and interests of the users, although on the other hand, the fact that decisions of ADR bodies are not binding might also push for the adoption of balanced approaches that online platforms would be eager to accept to a certain extent. In any case, whether recipients will in practice be able to choose the most adequate body for each possible dispute depends on the conditions of effective implementation of this part of the DSA, as well as the adoption of public policies to promote the establishment of this kind of mechanisms. Such promotion must also include adequate sensitization of users who may tend not to take any step to question content moderation decisions.
According to the DSA, the body must also have expertise in relation to “the issues arising in one or more particular areas of illegal content, or in relation to the application and enforcement of terms and conditions of one or more types of online platform”. ADR Directive requires that the body must possess the necessary knowledge and skills in the field of alternative or judicial resolution of consumer disputes, as well as a general understanding of the law. Since the DSA includes a number of provisions stressing the need to interpret and enforce terms and conditions in light of fundamental rights, expertise in this area might be considered as a horizontal requirement, independently from the specific area of specialisation of the respective body. In addition to this, knowledge regarding particular areas of illegal content and terms and conditions (hate speech, gender abuse, extremism, etc.) may also be particularly demanded as a requisite. In any case, assessment of this type of expertise may not be an easy task for DSCs.
The DSA does not include any restriction when it comes to the place of establishment of the ADR mechanism, thus creating the conditions for an internal market in the provision of this kind of service. However, it is difficult to assume that the majority of bodies might be technically able to adjudicate discussions on the legality of a certain piece of content in a country different from the establishment.
The settlement must take place in accordance with clear and fair rules of procedure that are easily and publicly accessible, and that comply with applicable law. This demand of the DSA is very important since it imposes on settlement mechanisms the obligation to establish ex-ante very clear rules of procedure which should cover all the phases and requisites of their respective decision-making process. Obviously, such rules will need to be presented to the respective DSC as part of the verification process prior to granting the corresponding certification.
ADR Directive establishes (article 9) a series of basic fairness requirements applicable to all alternative dispute resolution procedures, which of course also need to be respected in disputes covered by the DSA. These are a few basic principles that need to be developed and implemented through a comprehensive set of procedural rules. The most challenging aspect would probably be the legality requirement (“comply with applicable law”). It is important to note that these mechanisms are of a private nature and therefore do not need to replicate administrative or judicial procedures. In addition, it is necessary at this stage to acknowledge the important differences between platform-based dispute settlements and public courts, in terms of institutional features, procedural design, and nature of the solutions they offer. In any case, it would be necessary to consider additional requirements applicable to this specific type of service according to national legislation, including the specific definition of the formalities of the procedure and their timeframes, the intervention of third parties (particularly expert witnesses), the possibility of submitting different types of evidence or the facilitation of possible agreements within the parties to put an end to the dispute.
Another important uncertainty is the fact that the DSA does not include any clear reference to the possible involvement of third parties during the settlement procedure, for example in cases where a piece of content was flagged by trusted flaggers or where the user who posted a piece of problematic content is not the creator, as noted already. It is thus not clear whether DSCs might endorse proposed procedural rules that contemplate such modalities of participation.
All the above may also trigger the existence of differences, at the procedural level, between different certified bodies in different countries. The degree of transparency, openness, and fairness may also become a factor for users to guide their choices of out-of-court mechanisms. In the same vein, excessively burdensome, lengthy, or complex mechanisms may discourage potential users. Also, the fact that there is no clear access to justice mechanism regarding certain decisions adopted by these bodies, particularly regarding standing and procedure, users may also be reluctant to engage with mechanisms that incorporate excessive or complicate internal rules in these areas.
Article 9.2 of the ADR Directive also refers to the possibility that ADR procedures may resolve a dispute by proposing a solution. The DSA neither contemplates nor excludes this modality. In any case, considering the particular and complex nature of the disputes contemplated under article 21 DSA, the possibility for settlement bodies to propose a solution might be a useful tool to provide a satisfactory arrangement for all the involved parties.
Article 21 DSA constitutes, no doubt, one of the most innovative and user-protective provisions included in the DSA. A proper application may produce relevant transformations and the emergence of more accurate principles and criteria applicable to content moderation regarding both illegal and objectionable content. Article 21 gives users the possibility to seek redress vis-à-vis intermediaries’ decisions without the need to engage directly with platforms or to file legal claims before the judiciary. Considering the foreseeable nature and characteristics of the still-to-be created settlement bodies, this mechanism may also reinforce the dialogue between “ordinary” platform users and civil society organisations thus also improving the understanding of the actual controversies and most sensitive topics in the area of content moderation.
However, article 21 still presents many uncertainties when it comes to effective implementation and oversight by DSCs.
Therefore, as the entry into force approaches, it will be important that civil society, existing settlement, and self-regulatory mechanisms, platforms, and regulators engage in informed dialogue and coordination to fulfil the promises of such an innovative legal provision.