Report on Expert Workshop – Navigating the DSA’s procedural turn: lessons from consumer law for ODR

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Expert workshop

1 December 2023, 14:00 – 17:30 (CET), University of Amsterdam

 

Written by Kirsten Meiring, Anna van Duin & Paddy Leerssen

Introduction

On 1 December 2023, the DSA Observatory’s Anna van Duin and Paddy Leerssen organised an expert workshop on out-of-court dispute settlement (ODS) under Article 21 of the DSA. This report provides a summary of the proceedings and key findings.

The goal of this workshop was to critically assess the DSA’s ODS framework. To this end, it brought together perspectives from procedural law, consumer law and information law. The overarching question for participants was: What lessons can be learned from the experiences with, and research on, consumer ODR in the crafting of effective dispute resolution mechanisms under the DSA?

The event started with keynotes by Pietro Ortolani and Vanessa Mak, who provided initial commentaries on the DSA framework and existing pathways to dispute resolution. Subsequent panel discussions focused on the role of private enforcement and the design of ODR procedures. A full programme is available here. Besides academic scholars, also in attendance were participants from the European Commission, the Dutch Authority for Consumers & Markets (ACM) and Meta’s Oversight Board Administration.

Two of our participants, Vanessa Mak and Thomas Hughes, also wrote more in-depth blog post reflections of their own, respectively here and upcoming (later this week).

Pietro Ortolani’s keynote 1 on DSA Framework

The first keynote was delivered by Pietro Ortolani, who looked at the DSA and platform regulation through the lens of a “procedural turn”. Ortolani discussed several historical precedents where procedure has been prioritized over substance, such as the International Centre for Settlement of Investment Disputes (ICSID). The DSA, for Ortolani, can also be characterized as taking a procedural approach.

Ortolani identified several reasons for such a procedural turn, one of them being that it can help overcome political impasses by sidestepping the challenge of drawing new boundaries for online freedom of speech, or avoiding difficulties in establishing jurisdiction in content moderation disputes. According to Ortolani, there is a disconnect between platform decision-making and the reality of court adjudication. Whereas platform ODR is geared towards dealing with high volumes, it does not automatically result in more private enforcement.  In Ortolani’s view, adjudication involves the application of the law to facts, while ODR is primarily aimed at resolving the dispute and guiding the platform’s future decisions, not applying and enforcing substantive law, e.g. consumer protection rules. At the same time, as Ortolani has argued elsewhere (see e.g. ‘If You Build It, They Will Come’), content moderation procedures end up being the main avenue for redress. The risk of inconsistency and unpredictability is also pointed out in an upcoming blog post by Thomas Hughes (Oversight Board Administration), who calls for a standardized interpretation and application of several requirements in Article 21 DSA.

Keynote 2 on consumer ODR 

Vanessa Mak delivered the second keynote speech, in which she explored the relationship between the DSA and EU regulation of consumer dispute resolution, in particular the proposal for amending the ADR Directive and the ODR Regulation (524/2013). Mak questioned the extent to which the DSA enhances consumers’ ability to enforce their rights. The DSA’s scope is restricted to resolving disputes concerning content moderation. All other consumer disputes will have to be addressed under existing ADR/ODR schemes. However, Mak noted that ‘platform logic’ does not necessarily match ‘consumer logic’. Article 14(4) of the DSA blurs the lines between consumer law and fundamental rights in the digital market. It requires that the terms and conditions of intermediary services are tested against the user’s fundamental rights. Mak argues that this blending of consumer law and content moderation poses a risk. While consumer law provides clear rights to consumers, fundamental rights are much broader. This could lead to issues of delimitation; see also this blog post written by Mak on the basis of her keynote.

Panel discussion 1: private enforcement

In consumer law, a reliance on party initiative combined with barriers to access to justice has made it difficult to offer redress in practice. The issue is not only that individuals are left empty-handed, but also that consumer rights violations and/or illegal and harmful content on a larger scale remain unresolved. With this in mind, the first panel discussion focused on the question what can be expected from private enforcement under the DSA.

Much of the discussion concerned how the DSA’s domain of platform regulation and content moderation aligns with that of consumer protection law. It was stressed that the DSA aims to protect consumers by incorporating consumer law concepts into its framework. The first speaker, Catalina Goanta, concurred with Vanessa Mak that these mechanisms are complementary and provide directly available remedies to consumers, but she also raised questions as to the suitability of ODS bodies under Article 21 DSA for different types of claims, in particular due to a lack of expertise in the field of a certain platform’s terms and conditions or specifically in the field of consumer law. The second speaker, Natali Helberger, observed that notions taken from consumer law like ‘manipulation’ or ‘vulnerabilities’ are transposed in a new framework with similar goals, but they may take on different or additional meanings. Consumer law focuses on the individual transaction between the consumer and the trader, while the DSA takes a systemic approach and aims to regulate the entire system, imposing obligations on platforms as intermediaries. Moreover, under the DSA, technology companies are largely responsible for interpretation, most notably of their own terms and conditions, while in consumer law, courts are ultimately responsible. The third speaker, Martin Husovec, pointed out that the DSA’s goal is to redistribute power and give individuals tools to better enforce their rights at scale (see also ‘Will the DSA work?’). Husovec framed ODS decisions under Article 21 as ‘second opinions’, which would help to ensure consistency. His comments also highlighted the importance of fee and cost structures in creating (dis)incentives for effective dispute resolution.

In addition, it was pointed out during the panel discussion that many activities within the digital realm are multifaceted and cannot be reduced to a simple B2C-transaction. Instead, individuals as end-users are increasingly becoming internet entrepreneurs. Additionally, platforms are not solely considered as venues for e-commerce, but also as spaces for exchanging political views.  The commercial nature of platforms may nevertheless be at odds with a citizen-based environment, a clash that becomes visible in e.g. political advertising.

The discussion concluded with the topic of integrating access to justice considerations into the ODR bodies. The primary concern was how to mitigate biases and ensure their independence and neutrality. It was agreed that a key issue is the financing of the ODR bodies, on which the DSA lacks clarity.

Panel discussion 2: access to justice

Online platforms may offer quick and easy solutions, but there is debate as to the quality standards that must be in place to ensure fairness in both the procedure and the outcome. This is particularly important due to the power imbalance between the platform and the internet user, which is similar to that of a consumer and a trader. Furthermore, ODR procedures are less transparent than public courts or certified ADR bodies. The second panel discussion addressed the question to what extent the DSA will contribute to access to justice for consumers.

In a high-level comparison, the first question that surfaced was what lesson can be drawn from the proposed revision of the ADR Directive. The first speaker, Marco Giacalone, highlighted the obligation for Member States to designate a contact point for assisting consumers and directing them to the appropriate entity. Within the context of the DSA, the Digital Service Coordinator could serve a similar role.  Increasing cooperation with other institutions, such as the Dutch legal aid centre (‘Het Juridisch Loket’), might also be beneficial. However, it was stressed that providing ‘more information’ is not a panacea. The second speaker, Emma van Gelder, identified a lack of awareness on the part of consumers as one out of three structural issues, the other two being a lack of trader participation and legality concerns. ODR is not the same as (offline) ADR, so technical standards should be infused with quality standards, e.g. when it comes to transparency. The third speaker, Federica Casarosa, talked about incentives for (investors in) ODS bodies in this respect. Whereas ODS mechanisms are supposed to be more swift, they entail a shift from public fair trial guarantees to private, out-of-court decision-making.

The discussion continued on the procedural design of ODR platforms, specifically in terms of accessibility. An objective of the ADR Directive review is to enhance the user-friendliness of procedures, for instance as regards language barriers. The panel discussed whether incorporating ‘user-friendly’ tools would also lead to de facto accessibility for more vulnerable groups. Mechanisms should be designed with the understanding that they depend on the type of remedy that is sought, and that they are digital, allowing for a more dynamic form (e.g. assisted negotiation where the parties can enter their positions and technology helps them to find a common ground).

Concluding remarks

The expert workshop proved to be a valuable exercise in exploring the DSA’s procedural turn. It also highlighted the differences and similarities between online dispute resolution under the Digital Services Act and other ADR/ODR instruments in EU consumer law, as well as the blurring boundaries between fundamental rights and consumer law norms. The expert workshop served as a starting point for further debate on the intersection between consumer law and platform regulation, which will continue to be a generative topic of debate for years to come.