The Digital Service Act’s Red Line: What the Commission Can and Cannot Do About Disinformation

Abstract

The Digital Services Act creates a system of general risk management that is composed of two main obligations: risk assessment (Article 34), and risk mitigation (Article 35). The obligations are mandatory for very large online platforms and search engines (VLOPs/VLOSEs). The periodical risk management exercise is overseen by the European Commission as the exclusive enforcer. It is aided by the official DSA Codes of Conduct that help to flesh out indicators, best practices, and industry-wide consensus. The adoption of the risk-based approach to digital services tries to make the law more future-proof. But inevitably it also makes the law very vague.

This vagueness of the statutory language causes some to suggest that the European Commission will inevitably become the proverbial Ministry of Truth when tackling disinformation. This article argues that upon closer reading of the DSA, and its constitutional context, the worries that the Commission inevitably becomes a Ministry of Truth are misplaced. Suppressing incorrect or misleading lawful information is not the goal of the DSA. That is not to say that the DSA cannot be abused. But the law is not pre-programmed to do so.

In the coming months and years, many will pressure the Commission to act against all sorts of social problems, including disinformation. However, even if these calls are justified by strong evidence, the Commission must stick to one important red line — it cannot invent new binding content rules. That is, it cannot tell providers what lawful expressions they must prohibit or suppress on their services. This still leaves room for many interventions against lawful disinformation whose goal is to improve the resilience of individuals against manipulation. As long as the Commission does not cross this red line, the arguments that it is becoming a Ministry of Truth are misplaced.

Keywords: disinformation, Digital Services Act, platforms, propaganda, freedom of expression

JEL Classification: K10