Who speaks and who is heard? Civil society participation and participatory justice in DSA systemic risk management

By Mateus Correia de Carvalho (PhD researcher, EUI) and Rachel Griffin (postdoctoral researcher, Duisburg-Essen University)

This post presents the report ‘Who speaks and who is heard?’ on civil society participation and participatory justice in DSA systemic risk management. In it, we examine the early practice of DSA participation to understand how it is unfolding in practice. Drawing on a qualitative empirical study with civil society actors of diverse backgrounds, perspectives, and activities, we traced the mechanisms used by those actors, their perceptions about the usefulness of different spaces of participation, the strategic considerations determining when, where, whether, and how to participate, as well as the obstacles and inequalities hampering meaningful participation. Regarding these inequalities, we propose to understand them as a matter of participatory justice, making some recommendations to improve the overall inclusiveness of DSA participation in systemic risk management. 

Since the DSA was first proposed, civil society participation has generally been portrayed by policymakers, regulators (e.g., here and here), academic researchers (e.g., here, here, and here) and civil society organisations themselves (e.g., here and here) as an essential part of this regulatory framework. There are two main reasons for this. First, independent experts, civil society organisations and representatives of affected communities can contribute information and expertise to DSA implementation and oversight processes, as well as introduce additional, alternative perspectives about emerging issues and the best solutions to address them. Second, civil society can help strengthen overall levels of accountability in DSA governance by independently scrutinising the actions and choices of platform companies and competent public authorities.

However, previous research on civil society participation in the DSA (e.g., here and here) and other fields of (digital) regulation (e.g., here and here) has highlighted various problems – such as lack of time and resources, limited access to information, and uneven access to regulators – that may, from the get-go, prevent meaningful civil society participation. With DSA implementation still at a relatively early stage, how these dynamics are playing out in this context remains an open question. Moreover, previous discussions of civil society participation in the DSA have often implicitly treated ‘civil society’ as a homogenous group with shared interests, failing to adequately consider the divergent interests, policy goals, capacities and social positions of different types of civil society actors.

Several questions thus emerge: how are different civil society actors actually participating in the DSA so far? What opportunities and obstacles do they face? Are all interested and affected actors being heard? The full report – which we kindly thank the DSA Observatory for hosting – presents a qualitative empirical investigation of these questions, focusing on how different types of civil society actors participate in the DSA’s systemic risk management framework (see here for more background on this framework).

We hosted a focus group workshop where we facilitated discussions and collaborative exercises between 14 civil society actors from different backgrounds: digital and non-digital rights NGOs, researchers, activists, grassroots organisations, journalists and a content moderators’ union. This was complemented by 21 semi-structured interviews. This enabled us to trace shared and diverging experiences and perceptions about the different strategies that a diverse range of civil society actors can use to influence platform regulation; the usefulness of different means of participation; and the obstacles faced by civil society actors potentially interested in contributing to DSA governance. These empirical findings can inform how regulators, and even platform companies, think about engaging with civil society stakeholders in DSA systemic risk management (as prescribed by recital 90) and in platform regulation more generally.

Below, we summarise the three main analytical contributions of our report. First, we identify different mechanisms through which civil society actors are engaging with the DSA systemic risk framework. Second, we describe some of the strategic considerations that shape their decisions about whether, when and how to engage with DSA implementation. And third, we highlight the differing experiences and positions of different civil society actors, which (as previous research has also indicated) translate into unequal opportunities to meaningfully participate in policy discussions and regulatory oversight.

Finally, on this basis, we offer three key recommendations for regulators to promote more inclusive participation in DSA systemic risk management: evaluating VLOPs’ engagement with civil society as part of compliance with Articles 34-35; supporting more diverse participation in their own consultation and decision-making processes; and being open to a wider range of perspectives and types of input from civil society.

Participating how?

We first provide a detailed account of the mechanisms through which civil society actors are engaging with the DSA systemic risk framework. Our mapping, which can be consulted in detail in the Annex to the report, includes both formal legal mechanisms (e.g. participating in consultations, submitting evidence to regulators) and informal participation mechanisms (e.g. media advocacy, publishing policy reports). It includes both institutionalised spaces, structured top-down by public institutions or platform companies, and bottom-up mechanisms through which civil society actors attempt to influence the regulatory agenda and perspectives of those institutions and companies. We underscore that participation in the systemic risk management framework is not exhausted by those mechanisms explicitly envisaged by the DSA: potential mechanisms of participation are much broader, and the law and policy of platform governance can be influenced in diverse ways and from several vantage points.

More concretely, we group the most significant participation mechanisms that our participants identified in six key categories: conducting and publishing research; lobbying and advocacy directed at platform companies; lobbying and advocacy directed at regulatory agencies; strategic litigation; formal complaints to regulators; and public advocacy in the media. Of these, advocacy directed at platform companies was seen as the least useful – in particular, because these companies were seen as less and less interested in meaningfully engaging with civil society, reflecting broader shifts in the business strategies and political alignment of (especially US-based) ‘big tech’ companies. In contrast, strategic litigation against platform companies, as well as lobbying and submitting complaints to regulators, were seen by many participants as the most promising strategies to influence DSA implementation. Crucially, these strategies’ importance did not just relate to their direct outcomes, like judicial or administrative decisions – they also had other advantages, like drawing attention to certain issues and getting them onto the regulatory and media agenda.

Strategy and workarounds

We also traced three types of strategic consideration that shape whether, when and how participants engage with the implementation of the DSA, and EU platform governance more broadly.

First, we look at the timing of advocacy strategies. Many participants felt that, at this early stage of DSA implementation, there is currently ample opportunity to influence how systemic risk is defined and what measures are considered best practices for its risk management. However, this also means that these opportunities will diminish with time, as such notions become more sedimented. Participants also noted that civil society actors’ attempts to influence this discussion may already be hampered by the geopolitical context surrounding DSA enforcement, especially the backlash from the current Trump administration. This begs the question: how will regulators navigate current external pressures seeking to curtail the iterative enforcement of systemic risk assessment and management? And how can they enable meaningful civil society input to such enforcement?

Second, many participants described feeling a pressure to choose between adopting ‘insider’ strategies, based on collaborative relationships with VLOPs and/or regulators, and taking on more of an ‘outsider’ or ‘watchdog’ role, scrutinising and criticising these actors’ choices. While more well-connected and well-resourced organisations who have more opportunities to take on such ‘insider’ roles see them as an effective way to exercise influence, they are also often concerned about losing their actual and perceived independence from public authorities and companies. Conversely, actors with fewer connections and resources in policy circles may feel constrained to pursue more ‘outsider’ strategies, given their inability to access ‘insider’ positions.

Finally, many civil society actors work together in coalitions in order to gain more access to participatory spaces and strengthen their influence in these spaces. Coalition-building can help civil society actors work around some of the structural limitations to individual participation, which we discuss more below. For example, it can enable organisations with funding and capacity constraints to pool their information, expertise and resources. It can also help civil society actors who lack direct connections with regulators and/or VLOPs gain access to participatory spaces and amplify their influence by working with other organisations. However, participants also noted that teaming up in coalitions could pose some drawbacks, with some suggesting that coalitions may be time-consuming, less impactful than individual advocacy and more likely to lead to ‘groupthink’ dynamics that reduce the diversity of perspectives represented in regulatory debates.

Structural inequalities and the need for participatory justice

In the second part of the report, we highlight the differing experiences and unequal influence of different civil society actors whose work and advocacy are relevant to DSA systemic risk management. We analyse three broad types of injustice that prevent equal and inclusive participation in DSA systemic risk management: inequalities of distribution, where some actors lack the necessary material resources (e.g. funding to travel to consultation and networking events, or resources to conduct research); inequalities of representation, where some actors are not given access to formal and informal spaces where they can exercise influence (e.g. because they do not have connections in the ‘Brussels bubble’, or because policymakers do not see their perspectives as relevant); and inequalities of recognition, where, even when actors have access to participatory spaces, their views are less likely to be listened to and taken seriously (e.g. because the topics they are concerned about do not correspond with regulators’ political priorities and enforcement strategies).

Taking these different injustices into account, we conclude the report with three key recommendations to regulators, aimed at fostering more just, equal and inclusive participation in the DSA. Specifically, regulators should:

• make inclusive engagement with civil society an explicit criterion for the evaluation of VLOPs’ compliance with Articles 34-35
• proactively reach out to diverse civil society actors in their own stakeholder engagement processes, and materially support participation by underrepresented actors
• welcome more diverse forms of input from civil society (e.g. qualitative as well as quantitative research, contributions on topics beyond current enforcement priorities)

As norms and practices around the enforcement of the DSA are starting to solidify, and civil society organisations active in this field are facing increasing political hostility and economic pressures, this is an important moment to recognise the diversity of ‘civil society’ and actively support more diverse participation. This means considering a wider range of stakeholders – beyond specialist digital rights organisations – whose (lived) experience and expertise may be relevant to the DSA, and ensuring that civil society actors can participate in risk management processes on equal terms.

Read the full report and Annex: