The European Digital Service Act and the defence of Democracy

Abstract

Summary: Introduction. II. The Digital Service Act. III. Large digital companies and systemic risks. IV. Defending democracy. a) Protecting civic discourse, b) Protecting electoral processes, c) Protecting public security, d) Risk reduction measures. V. Conclusions. VI. Bibliography.

Abstract: In February 2024, Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a single market for digital services and amending Directive 2000/31/EC (the Digital Services Act) entered into application in its entirety. This provision aims to update the legal framework governing the activities of companies providing online intermediary services in all EU Member States.

The topicality of the Regulation has aroused great interest in the doctrine on the adequacy of the liability regime designed, and its comparison with the previous regime, as well as that of different countries —especially the United States—. However, it is necessary to analyse the new provision from the perspective of the problems posed by the control of private power and its possible effects on a constitutional democratic regime. The emergence of new highly influential multinational companies whose services are, in many cases, essential — both commercially and democratically

— has highlighted the need to reformulate the minimal liability regime that had been applicable to them. The Digital Services Act foresees the possibility that the design, use and operation of online intermediary services may entail a number of systemic risks affecting Member States’ constitutional regimes. These risks are grouped by the European legislator into four categories.

This article analyses the third of these systemic risks, specifically, that contained in Article 34.1 (c), relating to “any actual or foreseeable negative effects on civic discourse and electoral processes, and public security”. To this end, the research first provides (I) a general analysis of the DSA itself, followed by (II) a presentation of large companies as an autonomous category and of the systemic risks established by the EU. The third section

(III) focuses on the defence of democracy subsumed under the third of the risks, analysing the concepts of “civic discourse” and “electoral process”, in an attempt to identify some of the potential risks faced by each of them in the digital environment, and the mitigation measures provided by the DSA. This study leads to a series of (IV) conclusions, including the idea that, although it is true that the efforts undertaken by the new regulation point in the right direction, the collaboration of the companies themselves and a strict control by the national authorities to ensure compliance, will be necessary.