The Digital Services Act (DSA) aims to ensure freedom of expression on the internet. It prohibits platform operators from arbitrarily deleting content and obliges them to align their community guidelines and general terms and conditions with freedom of expression. In Austria, the Communications Authority (KommAustria) monitors the platforms’ compliance with the law. The publication “Der Schutz der Meinungsäusserungsfreiheit im Digital Services Act” [The Protection of Freedom of Expression in the Digital Services Act], to which Prof. Dr. Matthias C. Kettemann contributed significantly, is the first in a series of KommAustria publications on the DSA, which are intended to provide a basis for understanding the DSA and contribute to a more differentiated discussion.
You can download the study here (open access)
Key Findings from the Summary
- This study (…) shows that the DSA ensures a clear distinction between illegal and (merely) harmful content and only contains an obligation to remove illegal content quickly. It must be acknowledged that the handling of non-illegal content has to be analyzed and reported by many platforms as part of risk assessments and reports, which may lead to proactive (and neither intended nor desired) restriction of legitimate expression; however, this does not constitute “censorship”. The same effect can be achieved by over-blocking, for example due to poorly configured moderation systems; this is unfortunate, but again not “censorship”. The certification of trustworthy flaggers by state actors does not constitute an authorisation of the latter either, and thus the state does not exercise “censorship” over these organizations (which have only limited powers anyway).
- The DSA affects freedom of expression, but does not disproportionately restrict it. Rather, the DSA’s regulatory program strengthens the protection of the fundamental rights of individuals and the protection of the interests of all parties involved. This justifies, in summary, an improvement in the level of protection of freedom of expression on the platform. In practice, however, the coordinators of the digital services as surveillance facilities must also ensure that freedom of expression is not gradually eroded by moderation practices.
- The role of trusted flaggers “must be carefully examined in the context of the DSA, and only actors with a clear track record of helpful and non-excessive reporting of illegal content should be considered.”
- “Alternative dispute resolution bodies can in some cases help to resolve content-related conflicts more quickly; advisory or oversight boards are interesting bodies for the medium- to long-term development of the governance of expression within platforms, although here too care should be taken to maximize the protection of expression and diversity of opinion.”
- “In order to strengthen freedom of expression on the provider side as well, professional journalism and public service media (public broadcasting) should be strengthened as a counterweight to platform-based information and the relevant guarantees of the European Media Freedom Act should be respected.”
- “Researchers are empowered to verify how platforms deal with illegal and/or problematic content by making use of the independent data access provided for (Art. 40 DSA) and should be involved in the work of the DSCs.”
Kettemann, M.C., Böck, C. und Müller, M. (2024): Der Schutz der Meinungsäußerungsfreiheit [The Protection of Freedom of Expression].Schriftenreihe des österreichischen Koordinators für Digitale Dienste zum Digital Services Act [Publication Series of the Austrian Digital Services Coordinator on the Digital Services Act], Volume 1. Innsbruck: KommAustria. Available at: https://www.rtr.at/DSA_Studie_Meinungsfreiheit.