Codes of Conduct in the Digital Services Act: Exploring the Opportunities and Challenges

Abstract

-- A final version of this draft paper has now been published at https://techreg.org/article/view/18139 --

Many questions remain about how the EU’s Digital Services Act (DSA) will be implemented in practice – especially regarding the risk assessment and mitigation regime established in Articles 34- 35, meant to play a key role in addressing systemic issues like the effects of platform design and recommendations, structural discrimination, and the spread of harmful content. In this context, the DSA provides in its Articles 45-47 for the establishment of codes of conduct to guide companies’ and regulators’ interpretation of their obligations. Codes could therefore significantly shape the DSA’s implementation, and ultimately its effectiveness.

We provide the first comprehensive analysis of codes in the DSA. We first provide a doctrinal analysis of the functions served by codes, the codes that currently exist or are in progress, and the legal status of codes. We show that codes create de facto legal obligations for the largest platforms which are subject to Articles 34-35, further underlining the need to consider how they will shape DSA interpretation. We then consider the potential benefits and disadvantages of using soft law codes to build on the DSA’s regulatory framework. We argue that codes could significantly strengthen accountability by providing more detailed standards and success metrics; mandate risk mitigation measures in hitherto underemphasised areas; and broaden stakeholder participation. However, realising these benefits may be practically challenging. We also raise questions about the legitimacy of addressing politicised issues through soft law instruments, highlighting risks of corporate capture, political interference and weak accountability.

Keywords: digital services act, platform regulation, codes of conduct, soft law, systemic risks