🔬 Research Summary by Dr. Suzanne Vergnolle, an Associate Professor of Technology Law at the Cnam (Conservatoire National des Arts et Métiers) where she works at the intersection of Law, Technology, and Public Policy.
[Original paper by Dr. Suzanne Vergnolle]
Overview: Cooperation between regulators and civil society organizations is an excellent way to foster a comprehensive approach, address society concerns, and ensure effective governance in areas such as policymaking, enforcement, and protection of rights. Building upon this premise, the present report offers concrete recommendations for designing an efficient and influential expert group with the European Commission to lead operational and evidence-based enforcement of the Digital Services Act.
Online platforms play a significant role in today’s digital landscape as they provide services and platforms for communication, content sharing, and commerce on a massive scale. The challenge of removing the disturbing video of the terrorist attack in Christchurch remains ingrained in memory, illustrating the arduous task faced by platforms in swiftly and diligently eliminating illegal content. In response to the need for a safer and more accountable online environment, the European legislature adopted the DSA (Digital Services Act) in 2022.
This new regulation reconciles the liability exemption of intermediary services established in the former e-commerce directive with new due diligence obligations for mitigating the risks intermediary services create for society, including phenomena like hate speech, discrimination, and disinformation. The new rules have real potential to improve online services practices, but their actual impact will only be as good as their implementation and enforcement. While the enforcement system involves multiple actors, the supervision of the due diligence obligations of VLOPs (Very Large Online Platforms) in the European Union relies exclusively on the European Commission. Given that the Commission is currently getting organized to implement its new enforcement powers, it is the perfect time to reflect on how these powers can build upon collective intelligence (CI) and design collaborative mechanisms to ensure the effective enforcement of the DSA.
The aim of this report is precisely to provide key recommendations and expert advice on how to develop resourceful and fruitful collaboration mechanisms between the Commission and CSOs (Civil Society Organizations), notably by establishing an expert group. The recommendations are based on a four-step method, including research on sensibly involving stakeholders and nourished by a wide range of interviews with regulators, experts in digital policies, participatory mechanisms, and members of existing expert groups.
Why involve third parties in the enforcement of legal rules?
Considering involving third parties in enforcing legal rules may come as a surprise. Usually, when thinking about enforcement, one may picture a courtroom where parties present their arguments to a neutral officer in charge of hearing and deciding their case. Yet, enforcement is not limited to the resolution of a dispute. It also includes monitoring compliance and deciding whom to investigate. Two missions where third parties’ expertise can bring valuable input and save the regulator’s time. Building upon external expertise can bring evidence-based inputs and help target the most pressing issues for the parties involved, particularly by hearing the voice of people whose rights have been hurt. On a more general note, welcoming external contributions are linked to an open and participatory governance model, both central to efficiency and trust in institutions.
How to establish a fruitful setting for the involvement of third parties?
After discussing various collaboration mechanisms, including public consultations, committees, conferences, and tech-oriented events, the report focuses on a specific mechanism – an expert group – which is considered a good setting to build a lasting and trustful relationship between the Commission and involved parties. There are several advantages justifying the importance of establishing such an expert group. Unlike events that only happen irregularly, expert groups can serve as a reliable platform for continuous dialogue. Unlike public consultations open to contributions from a wide audience, expert groups bring targeted and specialized expertise. Expert groups are therefore considered a good manner to involve third parties on a long-term basis while leaving room for other mechanisms also to complement it.
Whom to involve – or not – in the expert group?
When considering who should be involved in the expert group, the report discusses at length its composition, emphasizing the selection process as a key element to ensure its success. More specifically, a good balance of interests covered by the DSA, including topics ranging from platforms’ monitoring and governance, human rights, non-discrimination, children’s protection, and trust and safety, are considered important. Concrete recommendations on how to design the call for experts are therefore formulated. The report also details which categories of third parties have to be represented. The group should mainly comprise CSOs, independent experts, and scholars. Based on the premise that the industry is the target of the regulation and that it is already well represented in many instances, the report considers it should not benefit from permanent representation in the expert group.
How should the expert group be administered?
The framework established by the 2016 Commission Decision for the creation and operation of expert groups is a well-thought structure, providing adaptability for its implementation. As such, it serves as the structural basis for many recommendations. For instance, the report advocates for a mixed secretariat and a joint chairpersonship, both possible under the framework. On the logistics, the report discusses measures fostering inclusiveness, such as well-organized remote meetings and the possibility of obtaining compensation for the work performed in the group. Ensuring the capacity to be compensated, particularly for participants representing civil society organizations, was considered a critical point for many of the experts interviewed.
Conclusion and Implications
The Digital Services Act is promising on many levels. One of its promises is to make sure very large services are as much accountable as their influence on society. To enforce this promise, the Commission must provide guidance and ensure there are sanctions in case of violations. To do so, the Commission should prioritize establishing an expert group to harness CI. While this report offers justifications and best practices for establishing an expert group with the Commission, most recommendations are not limited to this specific group. They can easily be applied to other committees or groups wanting to be built on collective intelligence and prioritize inclusiveness, participation, and efficiency as core principles.