New EU Regulations Attempt to Tame the Internet
Legislating the Boundaries Between Online Safety and Freedom of Expression
While there is no question that the rise in online platforms has spurred countless benefits to both consumers and businesses, the last several years have highlighted a number of downsides including privacy violations, the spread of disinformation, gatekeeping, market dominance, hate speech, and a plethora of illegal activity like terrorism, child pornography, human trafficking, and more. As digital experiences continue to evolve, regulatory agencies around the world are trying to evolve legislative frameworks to govern the online space with a focus on safety. Europe, in particular, is actively working towards passing proposed legislation intended to create a safe digital environment — The EU Digital Services Act Package (DSA) and the UK Online Safety Bill (OSB).
The EU Digital Services Act Package (DSA)
The Digital Services Act package comprises two legislative initiatives: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The DSA addresses the online intermediaries and platforms (digital marketplaces, social media, travel sites, app stores, etc.), while the DMA is more focused on addressing the issues of online gatekeeping between businesses and consumers. Per the European Commission, the goal of these initiatives are to:
- Create a safer digital space in which the fundamental rights of all users of digital services are protected;
- Establish a level playing field to foster innovation, growth, and competitiveness, both in the European Single Market and globally.
If the legislation is passed, the impact of the DSA will be broad, and will apply to both companies that are based in the EU, as well as those outside of the EU that provide services in the digital market. And while the DSM portion would place more of an emphasis on the larger platforms with 45 million or more users, digital platforms across the board will be faced with adjusting to the new regulations and requirements. At the moment, the fate of this legislation is still up in the air as talks with the European Council are still in process. There has been mention of possibly wrapping up the talks and voting by July 2022, although that seems more likely to be an overly optimistic projection.
The UK Online Safety Bill (OSB)
Similar to the purpose of the DSA, the UK has proposed its own legislation in the Online Safety Bill (OSB) which is positioned as making the UK the “safest place in the world to be online.” The OSB is presented as a measure to protect children and force companies to remove illegal material online, particularly material relating to terrorism and child sexual exploitation and abuse, but also content that is deemed ‘legal but harmful’ like abuse, harassment, or content that could be perceived as encouragement for self-harm or eating disorders.
The purpose of the OSB is to:
- Increase online safety for users;
- Force accountability for tech platforms that don’t do enough to protect users against online abuse or manage the spread of disinformation.
Like the DSA, if the OSB is passed, it will apply to any and all companies that fall within the defined scope regardless of where they are based. The scope includes user-generated content platforms, social media, forums and messaging apps, cloud storage, search engines, and sites that publish pornographic content.
The proposed OSB is getting heavy pushback and as it is perceived by many to cross that fine line between ensuring online safety and the assumed right to freedom of expression and right to information. Among the high profile groups opposing the OSB is Article 19, an international human rights organization that works to protect and promote the right to freedom of expression and information in different regions around the world. While there is agreement from the opposing sides for a need to address the issues of online safety and the shortcomings of the tech companies to moderate their platforms, they have numerous concerns about the OSB as proposed. The key concerns highlighted by Article 19 in a white paper include being overly broad in scope, overly complex and vague definitions, overbroad discretion and control of the government, disproportionate sanctions, insufficient safeguards for freedom of expression, and weakening privacy and security of communications.
There are shared concerns about the freedom of expression, right to information and potential for overreach with both the DSA and OSB proposals, but the OSB seems to be drawing sharper criticism. And while neither of the proposed pieces of legislation have been passed, it’s a clear signal to companies operating in the digital space that changes are coming to force greater accountability for monitoring and filtering the types of content users can or cannot access through their platforms — filtering which requires a web content classification solution that can be tailored to fit individual business cases and technical requirements.