One of the major innovations brought in by the Digital Services Act (DSA) was to provide for the existence of trusted flaggers. Although the Regulation does not define them, trusted flaggers can be understood as specialised entities with specific skills in identifying illegal content and structures dedicated to detecting and identifying such content online.
While it is true that online platforms are now the main point of access to information and other content on the Internet for most people, it is also true that there is a large amount of illegal content that can be uploaded and therefore accessed online, which in turn raises serious concerns that need resolute and effective responses. Indeed, what is illegal offline is also illegal online: I am talking about racist and xenophobic speech, which publicly incites hatred and violence. The importance of trusted flaggers is therefore unequivocal, especially regarding the big platforms that everyone knows about, like “Facebook” and “X”.
Under Article 22 of the DSA, and without prejudice to many other things that could be mentioned, three aspects stand out from the trusted flaggers regime.
1. The choice of trusted flaggers : until the DSA, and in practice, it was up to the online platform to choose its trusted flaggers, who could even be natural persons. As of the DSA, not only is the status of trusted flagger now exclusively granted to legal persons, but also the entities that currently assume this status in the context of the European Union must apply for it under the DSA, which presupposes that they fulfil the conditions set out in Article 22 of the Regulation;
2. Control: one of the problems that can occur in the context of trusted flaggers is that the signalling can be wrong, which can inevitably compromise the freedom of expression of the person responsible for sharing the content, which, after all, was not illegal. With the DSA, and in accordance with Article 22(6), when an online platform provider has information indicating that a trusted flagger has submitted a significant number of notifications that are insufficiently accurate, inaccurate or inadequately substantiated, it communicates this information to the Digital Services Coordinator who granted the trusted flagger status, who can initiate an investigation. If, following this investigation, the Coordinator concludes that the trusted flagger no longer fulfils the conditions laid down by the DSA, then he can revoke the status granted.
As you can see, the aim is to guarantee an appropriate balance between the legitimate rights and interests of all parties, namely between the freedom of expression of the person sharing the content and the trusted flagger.
3. Misuse: intrinsically linked to the previous point, what happens if trusted flaggers misuse notifications, namely because they contain information that is not true, jeopardising the freedom of expression of those who share the content?
With the DSA, online platform providers can suspend, for a reasonable period and after having issued a prior warning, the processing of notifications submitted through the notice and take down mechanisms by entities that frequently submit manifestly unfounded notifications or complaints. In turn, the assessment of whether these trusted flaggers are acting abusively is made based on Article 23 of the DSA, and the decision to suspend must be based on a case-by-case, diligent and objective basis.
Now that we're here, and as mentioned above, the existence of trusted flaggers is important in itself, but it's even more important in the current context. Indeed, following the US elections, the new Administration's almost absolute defense of freedom of expression is well known. And based on this new interpretation of the limits (or lack thereof) of that same freedom, not only has Elon Musk – owner of “X” – been putting pressure on Trump to allow him to circumvent European Union law - in particular, the DSA – but also the US Vice-President himself, not only threatened in his election campaign to make US support for NATO conditional on the EU not taking action against “X”, but also recently, in a speech in Munich, accused the European Union of “lacking freedom of expression”, given the excessive regulation it is subjected to (not only, but also, by the DSA).
If it is true that the existence of the DSA – and in particular the trusted flaggers –makes it possible to safeguard a minimum balance between freedom of expression on the one hand and any other fundamental rights that might be affected by the abusive use of that freedom on the other, it remains to be seen whether the European Union will be able to fight for the effectiveness of the DSA, both with the main online platforms and on the other side of the Atlantic. The answer to this question – which is not only legal, but political – will ultimately determine not only the survival of the Regulation, but also the survival of the European Union itself.
#DSA #trustedflaggers #freedomofspeech #USelections
