The DSA Shows the Trouble With the EU’s Opaque Policy-Making

Like dust Settlements and details emerge from last weekend’s frantic EU negotiations on the Digital Services Act (DSA), the so-called “new constitution for the Internet”, to see if human rights defenders, democracy and freedom of expression must be celebrating this milestone.

The DSA offers a unique opportunity for Europe to set the global standard for online content governance. The ambitious provisions of the legislation, such as greater algorithmic transparency and content moderation, extensive due diligence obligations and risk assessment and mitigation measures, are very promising for a holistic and comprehensive legal framework for address many of the challenges of the digital ecosystem, especially as they are associated with clearer obligations on the treatment of illegal content.

So why is civil society still not outright celebrating the announcement of the interim political agreement? On the one hand, the agreed final text of the DSA is simply not ready yet and will not be in a few weeks, as many elements in what are called technical meetings have yet to be refined. In addition, experts and advocates do not know at all what surprises there are in this interim agreement. This uncertainty speaks to a wider concern, and is the clear lack of transparency during the interinstitutional negotiations, arguably the most crucial stage in the legislative process where the final text of the Regulation comes to life.

Overall, the lack of inclusion, democratic transparency and equitable participation has long been a point of discussion in EU policy-making. The constant exclusion of voices and perspectives from marginalized groups, or the lack of an intersectional methodology in EU decision-making, remains a persistent reality, and the opacity of this stage of the DSA process was not surprising. The result is legislation, albeit well-intentioned, that does not have the brand to offer the right protections for those most adversely affected by the problems that these frameworks seek to address.

Undoubtedly, such negotiations are a standard part of the EU’s co-legislative process. Once the European Commission has submitted a draft proposal, the European Council and the European Parliament devote a large amount of time to examining, amending, re-examining and re-amending the proposed draft regulation. This translates into the development of their mandates, or more clearly, their versions of the text with which they will go to negotiations. The 705 members of the European Parliament have the opportunity to vote in favor of approving, or rejecting, the House’s proposal, and this is the basis for which the main negotiators will fight as the process progresses. Similarly, the European Council goes through an extensive process in which Member States can submit proposals for amendments, commitments are made and agreement is reached on their “general approach”.

Civil society and experts can be extremely active and directly involved during this period, and in the context of the DSA, outside voices have successfully fought to include measures that protect democratic and fundamental rights. This is where the opportunities for democratic participation in the EU really come to life, and human rights defenders and experts are investing significant time in ensuring that the versions of the text that are brought to the negotiating table are the most progressive and rights-protecting. possible. However, once the democratic part of the process is over, a more opaque stage called inter-agency negotiations or Trilogues start. In this part of the DSA negotiations, several worrying provisions were introduced, or the existing provisions are drastically amended, diverging from the democratically agreed mandates.

Once the Trilogues begin, we find that we will have to navigate a fast and opaque process in which we must rely on innovative ways and allied networks in order to find out how the negotiations are unfolding and what commitments there are. now on the table. These elements change so quickly that it becomes a challenge to keep up, and it can be easy to miss an opportunity to improve a performance. Proponents of her case have been working to make the actual transcript of this statement available online. of fundamental rights and the GDPR became a failure of application.

The most significant example of a provision hastily introduced into the DSA during the Trilogues was the “Crisis Response Mechanism”, which would have given the European Commission the unilateral power to declare a state of emergency throughout the Union. and would require platforms to take mitigating action. Undoubtedly, in light of the pandemic and the war in Ukraine, it is understandable that lawmakers should seize the opportunity to add measures to alleviate future crises. But these measures simply cannot be at the expense of the obligations under the founding treaties to uphold the rule of law, especially since the EU Court of Justice has just dismissed the complaints of two member states in relation to state violations. of Law.

Increasing government power to potentially suppress discourse and make radical decisions without democratic checks and balances, which would have made the crisis response mechanism, is a red line that should not be crossed. Fortunately, thanks in large part to coordinated efforts to defend civil society, significant safeguards have been added to the provision and this unilateral power has been removed from the European Commission. However, the issue is that this was introduced and negotiated outside the respective mandates of the co-legislators and therefore calls into question their democratic legitimacy. And the layout may still be problematic, we just won’t know until the final text is published.

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