Making Systemic Risk Assessments Work: How the DSA Creates a Virtuous Loop to Address the Societal Harms of Content Moderation

forthcoming, German Law Journal

23 Pages Posted: 28 Jun 2023 Last revised: 26 Apr 2024

See all articles by Niklas Eder

Niklas Eder

Information Society Project - Yale Law School; Humboldt University, Law School; University of Leipzig, Law School

Date Written: June 26, 2023

Abstract

The EU’s Digital Services Act (DSA) introduces a new regulatory approach to address the societal harms of online platforms: systemic risk assessments. While a core component of the DSA, the regulation only outlines the standards and processes governing systemic risk assessments in broad strokes. It is still unclear what they will entail in practice. This article develops a proposal of how systemic risk assessments should be implemented. It situates systemic risk assessments as a critical step toward platform accountability as they address societal harms, while existing approaches, such as remedy mechanisms, only protect user rights. Engaging with intangible harms and regulating speech and public discourse, risk assessments also entail significant challenges. Conventional reference points for content moderation regulation, such as terms and conditions, contractual freedom, fundamental rights and expertise, do not provide practical and legitimate bases to concretize risk assessment obligations. Public actors, such as the Commission, should refrain from defining substantive standards, too, as they are directly bound by freedom of expression guarantees. Instead, the article argues, the Commission should foster a procedural framework, a “virtuous loop”, which empowers civil society and allows to specify and refine the standards governing systemic risks over time. Developing this framework, the article explains how systemic risk assessment can fix “multistakeholderism”, and “multistakeholderism”, in turn, can help make systemic risk assessments work.

Keywords: platform regulation, content moderation, DSA, systemic risk assessments, multistakeholderism

Suggested Citation

Eder, Niklas, Making Systemic Risk Assessments Work: How the DSA Creates a Virtuous Loop to Address the Societal Harms of Content Moderation (June 26, 2023). forthcoming, German Law Journal, Available at SSRN: https://ssrn.com/abstract=4491365 or http://dx.doi.org/10.2139/ssrn.4491365

Niklas Eder (Contact Author)

Information Society Project - Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

Humboldt University, Law School ( email )

Unter den Linden 6
Berlin, D-10099
Germany

University of Leipzig, Law School ( email )

Otto-Schill-Str. 2
04109 Leipzig
Germany

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