Collaborative Governance of the EU Digital Single Market established by the Digital Services Act

Abstract

This paper contributes to the INDIGO project by focussing on decision-making procedures implementing EU policies for the Digital Single Market. A key infrastructure of the EU Digital Single Market consists of online platforms and other intermediary services provided by private operators – mainly from the United States of America.3 These platforms have gained considerable economic power according to the economics of networks. Thereby, very large online platforms (VLOPs) as well as very large online search engines (VLOSEs) perform a gatekeeper function concerning access to the EU Digital Single Market including the ever more increasing communication on social media. Central instruments of VLOPs and VLOSEs for performing their gatekeeper function are fully or partially automated recommender, content moderation or advertising systems using algorithms including artificial intelligence (AI) technologies.

While legislators in the USA and in Europe have been very reluctant in the past to interfere into this private governance of major parts of our digital economy, the times have changed. This paper will show that recent EU legislation builds upon the mentioned gatekeeper function of VLOPS and VLOSEs including their automated decision-making systems in order to implement effectively EU policies “for a safe, predictable and trusted online environment” on one side and establishes on the other side a regulatory framework for the exercise of this private gatekeeper function and for the respective automated decision-making systems which shall “facilitate[..] innovation, [and effectively protects] fundamental rights enshrined in the Charter, including the principle of consumer protection”. This combination of outsourcing certain public policing functions concerning the Digital
Single Market with due diligence obligations or accountability structures for VLOPS, VLOSEs and other intermediary services enforced by various administrative supervisory authorities qualifies as a complex arrangement of collaborative governance.

Another focus of this paper concerns various knowledge gaps concerning the concrete impact of intermediary service providers in general and especially of VLOPs and VLOSEs on public values such as democracy and free speech as well as legislative options to cope with these gaps.
In 2015 the European Commission published its communication called “A Digital Single Market Strategy for Europe”. The strategy describes the relevant policy context of this paper and consists of three pillars:

− “Better access for consumers and businesses to online goods and services across Europe …
− Creating the right conditions for digital networks and services to flourish …
− Maximising the growth potential of our European Digital Economy ...”

The Commission identified cross-border e-commerce rules that consumers and business can trust and a modern European copyright framework providing better access to digital content as important elements of the 1st pillar. These rules are an interesting background for this paper. However, they raise primarily problems of private law and only to a rather limited extend challenges for administrative law. Thus, the 1st pillar is of no further interest for this paper. The same applies to the 3rd pillar which requires investment in ICT infrastructures and technologies such as Cloud computing and Big Data, and research and innovation to boost industrial competitiveness.

Keywords: INDIGO, Digital Governance, Law and Technology, EU Law

JEL Classification: O10, O19, O38, K39, I18, I30, G38