The EU’s Digital Services Act – Is it the Most Important Privacy Act You’ve Never Heard of?
Privacy Plus+
Privacy, Technology and Perspective
The EU’s Digital Services Act – Is it the Most Important Privacy Act You’ve Never Heard of? This week, let’s be reminded of a major privacy-related regulation that is already starting to shape the digital world, but seems to be oddly under-reported.
The EU’s new Digital Services Act (“DSA”) will take effect on January 1, 2024, but it is so significant that large social media platforms will need every minute before then to prepare. Briefly, the point of the DSA’s 100-odd pages is to force large social media platforms to do a much, much better job of policing their platforms against illegal and hateful content – with crippling penalties if they don’t. (The DSA should not be confused with its companion Digital Markets Act (“DSA”), which will regulate competition between the largest social media platforms and smaller competitors.). For more on the DSA and the DMA, you can click on the following link to our previous post, entitled “Dollars, Sense, and National Borders”:
https://www.hoschmorris.com/privacy-plus-news/Dollars,%20Sense,%20and%20National%20Borders
Today’s social media giants grew to their size under the umbrella of the United States’ Section 230, a fossil of the earliest days of the Digital Age, which encouraged the growth of intermediary platforms by immunizing them from liability for atrocious claims their users might post. But with no first amendment tradition and its own bloody history of disinformation, Europe has had little sympathy for commercial growth at all costs.
This has come to a head in the DSA. In contrast to Section 230, the DSA will require large platforms to monitor their content much more carefully and to take decisive action when they learn of hateful speech, including, for example, speech that promotes terrorism, child abuse, or scams (a “notice and action” regime, as opposed to outright immunity despite actual awareness). Penalties may be catastrophic. In 2018, many privacy practitioners gasped when the GDPR provided penalties of up to four percent (4%) of an offender’s global revenue (though nothing that large has yet been imposed). The DSA provides for up to ten percent (10%) – and an outright ban from Europe.
Twitter lies squarely within the DSA’s sights. Like other social media giants, Twitter uses algorithms that reinforce interest and excitement, particularly of eye-popping, objectively awful content. Among many other things, the DSA will now require Twitter to make much of its methodology transparent to regulators, to appoint a European representative who may be held personally liable for compliance, to do a far better job moderating its content, and to take decisive action against awfulness.
The EU Council approved the DSA in October 2022 – ironically, about the same time that ownership of Twitter changed hands, to a man who’d lately been complaining about how Twitter was run over with bots (actual notice?) and who has recently declared himself a “free speech absolutist;” has promised “amnesty” to many Twitter accounts which had been frozen for offending even Twitter’s generous standards; and has since laid off a vast swath of Twitter’s workforce including senior officers in privacy- and compliance-related areas.
Senior EU officials have noticed and have reached out to Twitter’s new owner directly., According to news reports, Twitter’s new owner has struck a non-confrontational tone, agreeing that the EU’s new rules seem to be a “sensible approach to implement on a worldwide basis” (including in the U.S.?) and to allow EU officials to conduct a “stress test” on Twitter’s system next year to help Twitter comply with the DSA in time.
You can read more about the EU’s discussion with Twitter by clicking below:
Twitter says this will require “huge work” on Twitter’s part – and it comes at a time when Twitter is being stressed in every direction.
---
Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.