10 September 2024
Brave New World
The exhilaration and enthusiasm which followed the passing of the Digital Services Act (DSA) is long over. No matter one’s perspective on the DSA, it seems clear that the party is over and the work begins. One of the perhaps oddest provisions of the DSA is Article 21. It calls for the creation of private quasi-courts that are supposed to adjudicate content moderation disputes. User Rights, based in Berlin, is one of the first organisations to assume this role. Continue reading >>
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11 July 2024
Online Speech at the US Supreme Court in Moody v. Netchoice
The First Amendment of the US Constitution raises some of the most difficult legal hurdles for regulating the global digital public sphere today. In Moody v. Netchoice, the US Supreme Court heard appeals from two judgments, an appeal from a decision of the Fifth Circuit declaring that Texas’ social media law H.B. 20 did not violate the First Amendment, and an appeal from a decision of the Eleventh Circuit finding Florida’s social media law S.B. 7072, instead, unconstitutional. These laws are similar in that they both attempt to impose must-carry and non-discrimination obligations on social media platforms, which in practice amounts to requiring them not to discriminate against conservative users’ posts. The compatibility of these two laws with the First Amendment cuts across a plethora of crucial issues on the future of social media regulation which the court could, but didn’t fully, address. Continue reading >>
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03 June 2024
Soft law, hardcore?
Soft law offers the possibility of agile and flexible regulation that can adapt to dynamic digital developments. However, due to its non-binding nature, soft law is not considered to be very effective. With the Digital Services Act (DSA), however, the EU is taking an - at least from a legal dogmatic perspective - unconventional approach by combining hard and soft law in a unique way. The DSA itself is a legally binding EU regulation, but it provides for soft law instruments and even contains provisions for their legal enforcement. Although such regulatory techniques are well known in EU law, they at least call into question the public perception of the DSA as the ‘constitution of the internet’. How far-reaching can such a constitution be that outsources essential issues to (executive-initiated, privately set) soft law? Continue reading >>
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06 September 2023
Europe’s Digital Constitution
In the United States, European reforms of the digital economy are often met with criticism. Repeatedely, eminent American voices called for an end to Europe’s “techno-nationalism.” However, this common argument focusing on digital protectionism is plausible, yet overly simplistic. Instead, this blog post argues that European digital regulations reflect a host of values that are consistent with the broader European economic and political project. The EU’s digital agenda reflects its manifest commitment to fundamental rights, democracy, fairness, and redistribution, as well as its respect for the rule of law. These normative commitments, and the laws implementing those commitments, can be viewed in aggregate as Europe’s digital constitution. Continue reading >>
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23 May 2023
A New European Enforcer?
As a key piece of the European Commission’s digital agenda, the Digital Services Act (DSA) is drawing a lot of attention from civil society, industry, and regulators. One particularly interesting development in that regard is the Commission’s current transformation from being the institution leading the DSA’s negotiations to the one enforcing it. This article explores the challenges faced by the Commission in this transformation. Continue reading >>
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13 February 2023
The platform-media relationship in the European Media Freedom Act
The European Media Freedom Act proposal takes aim at very large online platforms’ gatekeeping power over access to media content and aims to reshape the relationship between media and platforms. By providing media organisations a special position on platforms, however, the EMFA risks changing the media’s role and relationships with other actors in ways that run counter to its overall objective to secure media freedom. Continue reading >>
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