From Policy to Practice: Three Ways Open Government can Help Implement the DSA

The Digital Services Act is one of the major transparency laws for our times. But a government-only approach is not enough to make it a reality.

Written by David Klotsonis, Carina Paju and Joseph Foti

The Digital Services Act (DSA) is one of the most significant pieces of EU legislation to shape how we live online. Like any EU legislation, there are a number of steps to make its objectives a reality. As the new European Parliament and European Commission establish their work over the coming year, implementation will be most effective if it involves not only policy makers at the European and national levels, but also civil society across borders.

Here are some concrete steps that policy makers, implementers, and their allies can take to ensure that the law is implemented in a way that maximizes public welfare and democracy. Click here for in-depth insights on these recommendations, from a roundtable led by the DSA Civil Society Coordination Group* and hosted by the Centre for Democracy and Technology Europe, Open Government Partnership (OGP).

Before we dive into the areas of collaboration, readers may benefit from quick basics. Experts in the DSA can skip to “Open Government Approaches” below.

What is it?

The DSA is a comprehensive regulatory framework introduced by the European Union to create a safer and more transparent online environment. It is, in essence, a major piece of transparency and accountability legislation, requiring online services to publish transparency reports and take risk-management approaches.

What are its objectives?

• Enhance accountability: Hold online platforms accountable for illegal and harmful content.
• Protect users: Ensure the safety and fundamental rights of users in the digital space.
• Increase transparency: Increase transparency around the operations of online platforms.

What is subject to regulation?

• VLOPs and VSOPs: The DSA applies to all online intermediaries and platforms in the EU, such as online marketplaces, social networks, and content sharing platforms. The Act places additional obligations on Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VSOSEs) to ensure that they follow practices. These are defined as those platforms with more than 45 million monthly active users. (This would cover major products from Alphabet, X, and Meta, among others.)

How should it work? The law is enforced at two levels — at the European level through the European Commission (EC) and at the national level, through Digital Services Coordinators (DSCs). The principal difference — but not the only one — is that the EC deals with VLOPs and VSOSEs while DSCs deal with non-VLOPs/non-VLOSEs.

• The European Commission has a number of elements to its mandate, which give it the authority to:
• Supervise VLOPs, including through setting standards for company risk management obligations and transparency requirements.
• Coordinate with DSCs to ensure consistent enforcement across the EU and in cross-border matters.
• Ensure compliance by making information requests, launching investigations, and levying fines.
• Gather best practices and information on emerging issues through the European Board for Digital Services.

Each EU member state appoints a DSC to oversee the implementation and enforcement of the DSA within their borders and to collaborate with other DSCs in cross-border issues. They are also supposed to collaborate with civil society to enhance transparency and user safety.

Open Government Approaches

Implementing the DSA requires strong collaboration across sectors and borders. The stakes could not be higher, as the online world is already part of everyday life. This has an impact on personal safety, national security, fair and efficient markets, human rights, and democracy. Given that context, collaboration is key. The following are concrete areas to ensure strong coordination between civil society and government.

Proper set-up of DSCs: Ensuring adequate operational capacity and independence of DSCs will be essential to the success of the act. It is much easier to establish independence and strong capacity from the outset. Civil society groups can be a strong ally in this process, from ensuring that national law complies with the EU regulation and establishing basic processes for DSCs. Areas for information sharing and collaboration with civil society at the national level include establishing:

• Properly resourced processes to carry out specific provisions of the DSA, especially in monitoring compliance and enforcement;
• Cross-border collaboration; and
• Processes and points for stakeholder engagement at national level.

Systemic risk reporting, identification, and enforcement: Civil society groups can play a significant role in identifying risks and spotlighting gaps in regulation or enforcement. Specific actions DSCs can undertake to aid this practice include sharing:

A public timeline

• This could be similar to OFCOM, the British Communications regulator, where specific information is shared ahead of time on what kinds of input will be useful from civil society and when. Examples for key input would be “Trusted Flaggers Guidance” or the upcoming Delegated Act on Data Access.

Corporate reporting requirements

• Civil society can play a role in helping to set best practices or standards for transparency reports, in a way that protects public values.

Standards of evidence

• Civil society needs to know standards for evidence gathering so that they can optimize their contribution. Examples include an understanding of ‘systemic risk,’ approaches to risk assessment, and data standards for an investigation.

European Board for Digital Services: Building the European Board for Digital Services (EBDS) in a way that maximizes productive collaboration will be key. Areas for action include:

• Ensuring that the EBDS Rules of Procedure include dedicated spaces for exchange, providing equitable access for stakeholders and ensuring the transparency of its activities.
• Setting out clear rules and roles for advisory members of the EBDS. OGP has assembled examples and common practices of advisory groups here.
• Establishing clear processes for “trusted flaggers” and researchers in a collaborative way.
• Instructive parallels and possibilities may be drawn from citizen science initiatives in North America, amicus evidentiary processes in court systems, numerous fraud and corruption tip systems, and citizen oversight boards in the justice system.

The DSA sets out an unprecedented level of opportunities for collaboration between the public sector, civil society, and researchers. By working together, sharing information, and leveraging each other’s strengths, we can ensure that the DSA achieves its goals of creating a safer, more transparent, and accountable online environment.

* The DSA Civil Society Coordination Group is an informal coalition of civil society organizations, academics and public interest technologists who advocate for the protection of international human rights standards, respect for the rule of law, and human rights due diligence.