A Elon Musk who boasted, on the microblogging platform he had just bought, of having ” released “ the blue bird, Commissioner Thierry Breton retorted that the bird will fly, in Europe, according to European rules, thus alluding to those freshly enacted from the Digital Services Act (DSA). The Audiovisual and Digital Communication Regulatory Authority (Arcom) has just reminded the American company of its legal obligations in terms of controlling online content, asking it to confirm that it remains able to ensure the fight against misinformation and hateful content.
Should we see in these exchanges a revolution in the way of regulating freedom of expression on the major platforms in Europe? The objective of the DSA, adopted on October 19, 2022 in record time by the European institutions, is to make the fight against the dissemination of hateful or manipulative content more effective.
The main contribution of this European regulation is, in essence, to require large platforms (namely those with more than 45 million monthly users in the European Union) to carry out an annual analysis of “systemic risks” arising from the design or operation of their services, whether it concerns the risks associated with the dissemination of illegal content or threats to the exercise of fundamental rights, then to propose algorithmic and human solutions to mitigate these risks.
The DSA in search of a balance
The DSA thus requires platforms to identify the ills and invent remedies, under the watchful eye of the European Commission. This apparent self-regulation, which may come as a surprise at first sight – some will say that it is asking the wolf to devise measures to protect the sheepfold – is in fact a form of co-regulation which has already proven its worth in many sectors in both technical and complex.
It is thus quite naturally that this approach of” Risk analysis “ is becoming more widespread in digital regulation, whether within the General Data Protection Regulation (GDPR) for so-called “high risk” processing of personal data, such as online profiling, or within the future European regulation on artificial intelligence for AI applications, also qualified as high risk, such as automated credit granting systems.
The operator is obviously not on his own in this process, the DSA, like other digital regulations, trying to find a balance between accountability and self-regulation of platforms, on the one hand, and controls regulatory requirements and sanctioning powers, on the other hand.
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