New EU Rules for Digital Services: Why Germany Needs Strong Platform Oversight Structures
Note: This paper was originally published in May 2022, prior to the conclusion of negotiations on the DSA. The information on the wording and articles of the DSA has been adapted to the law’s final text version.
With the Digital Services Act (DSA), for the first time, the European Union (EU) will have common rules for platforms such as Instagram, Twitter, Amazon and also smaller online services. While the DSA has some weaknesses, it is still an important step toward a “transparent and safe online environment” for people in Europe, as the document itself states. For example, it obliges platforms to facilitate user complaints and to deal more transparently with online advertising. Researchers are to be given access to platform data to better understand content moderation and deletion, for example. But as helpful as these innovations are: Even the best rules are of little use if no one enforces them. The most pressing question is therefore: Who will ensure that platforms follow the DSA’s rules?
For very large platforms, it is mainly the European Commission that will be responsible. For all other digital services, member states will have to ensure that the rules are followed. For this purpose, each country must appoint a “Digital Services Coordinator” (DSC). The DSC not only coordinates all national and European authorities on the DSA, but is also involved in supervision. The DSC therefore has a central role to play, which is why answering the question as to who in the member states will take on this task is so significant.
In Germany, it is still unclear who will monitor compliance with the DSA and take over the function of the DSC. A whole range of German authorities and institutions are involved with platform regulation issues, but on their own, no body fulfills all the requirements. This is not surprising, as new laws often require new responsibilities and resources. But for the German government and German parliamentarians, there is now a need to re-think platform oversight in Germany.
It seems obvious to start by looking at existing authorities in the search for a suitable platform oversight body. But leaving it at that would be a missed opportunity. Instead of asking which entity is most likely to meet the requirements of the DSA, the question should be: How can the best possible authority be created? Policy makers in Germany should seize the opportunity to reform platform oversight. Not only is this urgently needed anyways, but the timing is better than ever: The DSA is far from the only EU legislative project on platforms and the data economy; others have recently been passed (Digital Markets Act) or are in the works (Artificial Intelligence Act). In addition, the German government has set out to revise media and telecommunications legislation.
If the federal government is serious about strong platform oversight, it should specifically develop new and combine existing competences at the DSC to create a specialized, independent oversight body. This authority could focus on the specifics of algorithmic content moderation or recommender systems, among other things, without simultaneously having to continue to perform its traditional tasks. Recognizing in this way that a separate supervisory body makes sense for digital services – as is the case for many other industries – would strengthen the implementation of the DSA. It would also be a first step toward resolving the general reform backlog in platform regulation in Germany. Such a technically strong and well-equipped independent authority is needed to supervise platforms in Germany and to provide the best possible support to the Commission at the EU level.
Dr. Julian Jaursch