“Anything that is prohibited in the public space will be prohibited in the online space. » Here is the genesis of the European Digital Service Act (DSA), regularly explained by the European Commissioner for the Internal Market, Thierry Breton. In short: the Wild West is over. In addition to the DMA (Digital Market Act) which will aim to regulate the platform market and better control the ultra-dominant status of the GAFAMs – Google, Apple, Facebook, Amazon and Microsoft – this text will take over from the old e-commerce directive from 2000.
Currently debated and voted on in the European Parliament, the DSA introduces obligations for major platforms, including GAFAM, in terms of content moderation (hate speech, disinformation, pornography, etc.), illegal products (counterfeits, weapons, etc.) as well as the transparency of their algorithms. For these large platforms, it will now be prohibited to promote their own products online. France, currently at the helm of the Council of the European Union until June 30, hopes to present a final version before that date.
End of the “country of origin” principle?
How should this actually work? Of course, the platforms will not be obliged to monitor all the content they host. The task seemed as impossible as it was worrying in terms of freedom of expression, the keys to regulation of which would have been delegated to private actors. On the other hand, they will have to take rapid measures of moderation at the request of a competent authority. But which ? That of the country that hosts the European headquarters of these platforms? This so-called “country of origin” principle had already shown its weaknesses with the General Data Protection Regulation (GDPR). Notably because Ireland, which hosts Facebook, Twitter or Google, had very little interest in penalizing these providers of thousands of jobs.
Under pressure from France and after many debates between the Twenty-Seven, the rules should be different. This regulatory role should fall to a new structure of the European Commission, according to the latest compromise text dating from last November. More reassuring? We will find out with use. But that’s not all. Individuals and organizations will also be able to report suspicious content or demand that a platform justify a takedown decision. The text also tightens the screw for pornographic platforms which will, in particular, have to ensure that users who download content are of legal age. To regulate these companies, the Commission proposes the implementation of tools. And penalties if they do not do what is necessary, a priori equivalent to around 6% of turnover.
And freedom of expression?
However, this text remains very sensitive at a time when many Internet users, sometimes elected officials, cry out for censorship as soon as one of their posts is deleted by a social network. But this text should not allow a platform to delete all opinion publications.
Example: you can continue to say that you have doubts about the vaccine. On the other hand, if a post encourages you to buy white spirit to fight against Covid, it should be deleted. “In short, anything that is legally illegal, such as rehabilitating Vichy or uttering racist insults or that directly puts the lives of people in danger” explains a connoisseur of the subject, close to the European parliamentarian. “But judging what is acceptable or not will remain a very complex task”, he concedes.
And for the press?
As for the press and its posts on the networks, a question arises: will Facebook and the European authority be able to delete articles from the platforms? Many believe that online platforms should not control editorial content for which publishers are legally responsible.
“Some consider that the media are directly identifiable and the platforms should not be judges of what they publish. If they relay false information or outlaw themselves, it is up to the justice of the country to do its job. continues our expert. This is also the position that passed to the European Parliament: “media exemption” DSA rules in the name of pluralism and freedom of the press.
But others wonder. What do we mean by “media”? What happens when an actor claiming this title also disseminates misinformation or illegal content. Some fear that excluding the media from the legislation will open a dangerous loop for the dissemination of disinformation.
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