Report: Pathways to Private Enforcement of the Digital Services Act
By Paddy Leerssen, Anna van Duin, Iris Toepoel, and Joris van Hoboken
Discussion of DSA enforcement tend to focus on regulatory action by the European Commission and national Digital Services Coordinators, but private actors are also taking the DSA to court. This report looks at the underexplored but important role of private enforcement—where individuals, NGOs, or consumer groups bring legal action themselves. It examines key DSA provisions with potential for such claims and outlines the legal and strategic choices that will shape how this tool is used in practice.
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Executive Summary
The Digital Services Act (DSA) marks a major evolution in EU digital regulation, designed to foster a safer, more predictable, and trustworthy online environment while upholding fundamental rights. While public enforcement, led by the European Commission and national Digital Services Coordinators (DSCs), has received considerable attention, this report focuses on the underexplored yet vital role of private enforcement as a complementary mechanism to ensure compliance with the DSA.
The DSA contains various provisions that clearly signal an intention to convey individual rights and enable private enforcement (most notably Article 54 on the right to compensation, Article 86 on representative actions and Article 90 on collective redress). Not every DSA obligation is equally enforceable through means, however. The options depend on whether direct effect can be established, or, in the alternative, indirect effect via tort or contractual causes of action under Member State law. National law also retains procedural autonomy regarding the procedures for enforcement, and jurisdiction may also vary based on the specific circumstances of each case.
Hence, opportunities for private enforcement vary across different DSA provisions. By way of illustration, we discuss key provisions across four categories of due diligence obligations —content moderation, risk governance, transparency and design obligations. Through this analysis, we raise new questions, and develop some preliminary answers, for the field of private enforcement in this important new field of EU law.
• Article 14 – Content Moderation: Article 14 DSA provides a strong basis for litigation regarding wrongful content moderation and the protection of users’ fundamental rights in this context. It is among the clearest provisions in terms of supporting direct claims.
• Article 35 – Systemic Risks: The risk governance framework is comparatively less likely to support direct effect claims. Nevertheless, courts may still take systemic risk obligation into account when considering other forms of liability under national contract or tort law (‘indirect effect’). Follow-on litigation to seek damages is another important avenue for private enforcement in this context.
• Article 40(12) – Transparency: The DSA’s rules on researcher access to publicly available data offer a strong basis for private litigation, potentially through both direct and indirect effect. However, critical questions remain—particularly regarding the procedural conditions researchers must meet to assert and enforce these rights effectively.
• Article 25 – Design Obligations: The DSA’s rules on interface design are also strong candidates for direct effect. Two key challenges in this context are establishing standing and navigating overlaps with adjacent rulemaking in data protection and consumer protection law.
Looking forward, the private enforcement potential of the DSA will involve strategic choices along various parameters including (1) the regulatory obligation at issue; (2) the cause of action (e.g. direct effect, contract or tort); (3) the type of claimant (individual user, representative action, collective action); (4) remedies sought (e.g., damages, injunctive relief; and (5) the appropriate jurisdiction. Selecting the best possible targets involves normative judgements about the most urgent policy priorities, combined with pragmatic, tactical judgements about the viability of different litigation strategies.