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Article

10 Jan 2022

Author:
Human Rights Watch

Commentary: EU - Put Fundamental Rights at Top of Digital Regulation

The European Union’s draft rules to regulate internet platforms have the potential to better protect human rights online, Human Rights Watch said today. But the European Parliament should be more ambitious in holding technology companies accountable for human rights harm stemming from their practices and introduce stronger safeguards against government abuse...

...The draft proposal preserves conditional liability for online platforms and prohibits the general monitoring of users, imposed by law or otherwise, which are cornerstones for protecting freedom of expression online. Conditional liability prevents incentives for platforms to over-remove legitimate online speech to avoid the risk of liability...

...The European Parliament is expected to vote on the EU Digital Services Act (DSA) during the week of January 17, 2022...

It also introduces important measures to increase platforms’ transparency, requiring companies to explain to users how they moderate content, disclose whether and how automated tools are used and the number of content moderators for each official EU language, and provide access to data for researchers, including from nongovernmental organizations.

But the proposal falls short in some key respects and needs to be strengthened. 

Potential for expanding government censorship online: The regulation is premised on the principle that “What’s illegal offline is illegal online.” It defers to existing EU and national laws on what constitutes illegal content and essentially transposes that standard to online speech. However, some EU member states have laws that restrict expression that is protected under international human rights law. The regulation would effectively put an EU stamp of approval on applying those abusive standards online...

...Failure to ban surveillance-based targeted advertising: While the draft regulation includes measures to increase transparency in online advertising and would enable people to opt out of content being recommended to them on the basis of profiling of their online behavior, it does not address the surveillance-based advertising business model that dominates today’s digital environment...

Narrow mandate for assessing rights risks: The draft regulation would obligate very large online platforms to carry out systemic risk assessments covering the dissemination of illegal content, and actual or foreseeable risk of some human rights harm stemming from the design, algorithms, intrinsic characteristics, functioning, and use of their services in the EU, which they are then required to mitigate.  

Under the proposal, very large online platforms would be subjected to third-party audits by “organisations which have been recognized and vetted by the Commission” to assess the platforms’ compliance with the regulation. Increased independent scrutiny of companies is helpful, but the proposal falls short of the kind of effective human rights due diligence that international standards require...

Potential for setting bad global precedents that are ripe for abuse: As the Digital Services Act Human Rights Alliance has emphasized, this regulation will have far-reaching consequences beyond the EU both because of its potential to inspire legislation in other regions and because it can set standards that companies may apply globally. The draft includes problematic provisions that are ripe for abuse...

Lack of independence for oversight and enforcement: The draft envisages shared responsibility for enforcement between the national-level Digital Services Coordinators, the European Board for Digital Services, and the Commission. The coordinators will have an oversight role at the national level, with both investigative and enforcement authority, including authority typically reserved for judicial authorities.

However, the draft regulation does not require full independence of these bodies, only that they function independently...

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