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INTRODUCTION TO THE DIGITAL SERVICES

ACT, CONTENT MODERATION AND
CONSUMER PROTECTION
JORGE MORAIS CARVALHO FRANCISCO ARGA LIMA MARTIM FARINHA

REVISTA DE DIREITO E TECNOLOGIA, VOL. 3 (2021), NO. 1, 71-104

©Revista de Direito e Tecnologia Obtido a: 28.04.2024 20:20

 jorge morais carvalho
NOVA School of Law / NOVA Consumer Lab

francisco arga e lima

NOVA School of Law / NOVA Consumer Lab

martim farinha
NOVA School of Law / NOVA Consumer Lab

Introduction to the Digital Services Act,

Content Moderation and Consumer
Protection*1

Abstract: In December 2020, the European Commission presented the Digi-

tal Services Act with the stated aim of ensuring a safe and accountable online
environment. It mainly consists of a Proposal for a Regulation of the Euro-
pean Parliament and of the Council on a Single Market for Digital Services.
This article provides an analysis of the historical and systematic context of
this proposal, including a guided tour of its content and an overview of the
relationship with other European legislative instruments. The issue of con-

*We would like to thank Maria Clara Paixão, Joana Campos Carvalho, Paula Ribeiro Alves
and Paulo Lacão for having read a draft of this text and for their suggestions.

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72 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

tent moderation in digital services is also further addressed, referring to the

historical context of the legal regime now proposed. The different EU and US
perspectives are outlined. The topic of consumer protection is also dealt with
in the text, with emphasis on the most relevant provisions in this field and the
problems that may arise therein.

Keywords: (i) digital services; (ii) digital market; (iii) data protection; (iv)
consumer protection

1. Introduction

The digital market, especially digital platforms, have been

intense topics of discussion for the past years. This is due, not only
to the exponential development of technology we have been dealing
with for the past decades, but also due to the possible risks for con-
sumers that derive therefrom.
For that reason, the European Institutions have had a long his-
tory of adopting legislative efforts to make the digital environment
a more secure place, namely when it comes to the Fundamental
Rights enshrined in the Charter of Fundamental Rights of the
European Union, like the respect for private and family life (article
7). This focus has been over-arching, but most heavily focused on
consumer law and data protection, where the European legal acquis
now contains a considerable amount of consumer law directives1
and the General Data Protection Regulation (GDPR)2.
Very recently, the Commission presented a new proposal to be
added to the list of European legislation related to the Digital Mar-

1
For example, Directive 2000/31/EC of the European Parliament and of the Council of
8 June 2000 on certain legal aspects of information society services, in particular elec-
tronic commerce, in the Internal Market (Directive on electronic commerce) – e-Commerce
Directive.
2
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal data
and on the free movement of such data, and repealing Directive 95/46/EC (General Data
Protection Regulation).

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 Introduction to the Digital Services Act, Content Moderation…   | 73

ket: the Proposal for a Digital Services Act3 (hereafter DSA). Here,
it mainly focuses on regulating intermediary services, thus comple-
menting the consumer law and the data protection rules already
put in place.
Thus, the aim of this article is to explore this proposal's history,
structure, as well as its relation with other European directives and
regulations, so as to ascertain its accomplishments and situations
where it does not go far enough. In particular, we shall focus on
content moderation as well as the way in which it aims at protect-
ing consumers’ rights, how much it protects consumers and if that
is enough. For that reason, Chapter 2 will focus on an analysis of
the Digital Services Act, from its origin and the reasons that led the
Commission to present it, to the main provisions that are embod-
ied therein and the relation it establishes with the existing legal
framework, especially the GDPR. In Chapter 3 we will approach
specifically the topic of content moderation, in order to ascertain
if the progress presented by the Digital Services Act adequately
answers the problems identified in prior legislation (in the Euro-
pean Union and the United States), and what is already done in
practice, namely by digital platforms. Lastly, on Chapter 4 we will
analyse how the Proposal reinforces consumer protection, when it
comes to five main aspects: traceability, pre-contractual informa-
tion and product safety information, advertisement transparency,
recommender systems and the general principle of non-liability of
hosting service providers.

2. Historical and systematic background of the Digital

Services Act

The Proposal for a Digital Services Act has been the culmination
of years of technological innovation that needed to be accompanied

3
Proposal for a Regulation of the European Parliament and of the Council on a Single
Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC
(COM/2020/825 final). Available at EUR-Lex: https://eur-lex.europa.eu/legal-content/en/
TXT/?uri=COM:2020:825:FIN (last accessed 14 April 2021).

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by the necessary legislative updates4. In fact, according to the Com-

mission, there were three main motives that led to this proposal.
Firstly, ever since the adoption of Directive 2000/31/EC, the devel-
opment of new digital services reached ever-increasing heights that
demanded the update of the European legal framework in what
concerns the digital market5. Secondly, the constant usage of these
new services and platforms has become a source of new risks, both
to consumers as well as society as a whole, being thus necessary to
regulate them in order to mitigate these potential dangers6. Lastly,
the current pandemic scenario in which we are submerged has also
raised attention to the importance of digital technologies in our
daily lives. As the Commission puts it “[i]t has clearly shown the
dependency of our economy and society on digital services and high-
lighted both the benefits and the risks stemming from the current
framework for the functioning of digital services”7.
Due to this need to regulate the digital market and service pro-
viders, the Commission presented in December a legislative pack-
age composed by two proposals: the Digital Markets Act8 and the
Digital Services Act. While the first aims at ensuring fair economic
outcomes with regard to digital platform services, as well as to
complement the application of articles 101 and 102 TFEU to these
specific platforms9, the Digital Services Act aims at harmonising
conditions for innovative cross-border services to develop in the

4
In that sense, see EPRS, Digital Services Act (March 2021), 1-4. Available at
Europarl: https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/689357/EPRS_
BRI(2021)689357_EN.pdf. (last accessed 14 April 2021).
5 European Commission, Proposal for a Regulation of the European Parliament and of the

Council on a Single Market for Digital Services (Digital Services Act) and amending Direc-
tive 2000/31/EC, (COM (2020) 825 final), Brussels, 15-dez.-2020, 1. For the need to review
the e-Commerce Directive as stated by the European Parliament, see the brief summary
in EPRS, Digital Services Act cit., 2-3.
6 European Commission, Digital Services Act cit., 1.

7 European Commission, Digital Services Act cit., 1.

8
European Commission, Proposal for a Regulation of the European Parliament and of the
Council on contestable and fair markets in the digital sector (Digital Markets Act), (COM
(2020) 842 final), Brussels, 15-dez-2020.
9 European Commission, Digital Markets Act cit., 16.

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 Introduction to the Digital Services Act, Content Moderation…   | 75

EU, addressing and preventing the emergence of obstacles to these

activities, as well as providing for adequate supervision to the pro-
vided services10. For that reason, it sets due diligence obligations on
different types of digital service providers in order to ensure that
those services are not misused for illegal activities and that opera-
tors act responsibly11.
With these two proposals, it becomes evident that the Commis-
sion wants to tackle the problems that arise from two main situa-
tions. When it comes to the Digital Markets Act, the Commission
justifies its need on the characteristics that core platform services
have, namely extreme scale economies, network effects, the abil-
ity of connecting many business users with end users through the
multi-sidedness of these services, etc12. These characteristics com-
bined with unfair commercial practices have the potential of under-
mining the contestability of the core platform services, as well as
the general fairness of the business and end users of such services13.
Thus, with the Digital Markets Act proposal, the Commission aims
at providing appropriate regulatory safeguards throughout the
Union against unfair behaviour, facilitating cross-border business
throughout the Union, improving the functioning of the internal
market14.
The Digital Services Act, however, has a different scope. Even
though it aims at ensuring the proper functioning of the internal
market, especially when it comes to cross-border digital services
(mostly intermediary ones), here the focus is to foster the respon-
sibility of intermediary service providers, to allow for the existence
of a safe online environment, where citizens remain free to exercise
their fundamental rights, namely the freedom of expression and
information15.

10 European Commission, Digital Services Act cit., 2-3.

11
European Commission, Digital Services Act cit., 18.
12
European Commission, Digital Markets Act cit.,14-15.
13 European Commission, Digital Markets Act cit., 14-15.

14
European Commission, Digital Markets Act cit., 16.
15 European Commission, Digital Services Act cit., 6; EPRS, Digital Services Act cit., 1-2.

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2.1. Guided tour to the Digital Services Act

The Digital Services Act is an instrument aimed at reinforcing

the responsibilities of intermediary services. How does the Com-
mission concretely suggest achieving this goal? It does so through
a Proposal for a Regulation divided into five chapters: General Pro-
visions; Liability of Providers of Intermediary Services; Due Dili-
gence Obligations for a Transparent and Safe Online Environment;
Implementation, Cooperation, Sanctions and Enforcement; Com-
mon Provisions of Enforcement; Final Provisions.
The first chapter sets the general tone of the proposal, clarify-
ing its subject matter, scope (article 1) as well as the definitions
(article 2).
The Regulation will apply to part of the information society ser-
vices, namely the intermediary services (article 1-1). An “informa-
tion society service” is to be considered “any service normally pro-
vided for remuneration, at a distance, by electronic means and at
the individual request of a recipient of services” (article 1-1(b) of
Directive (EU) 2015/1535). There are four conditions that should be
met in order to comply with the concept: (i) remuneration; (ii) at a
distance; (iii) by electronic means; (iv) at the individual request of
a recipient of services. In the Uber Spain, Uber France and Airbnb
Ireland cases16, the CJEU established case-law according to which
a service provided by a digital intermediation platform, in order to
be classified as an information society service must not only comply
with the four conditions mentioned, but also not to form an integral
part of an “overall service whose main component is a service com-
ing under another legal qualification”. To answer this last question,
the CJEU created a test which includes two decision criteria: (i)
whether the platform has created a new market; (ii) whether the
platform exercises a decisive influence on the service providers reg-

16
CJUE 20-dez.-2017, case c-434/15 (Judgment Uber Spain); CJUE 10-abr.-2018, case
C-320/16 (Judgment Uber France); CJUE 19-dez.-2019, case C-390/18 (Judgment Airbnb
Ireland).

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 Introduction to the Digital Services Act, Content Moderation…   | 77

istered with it with regard to the conditions under which the service
is provided17.
Recitals 5 and 6 of the Proposal state that the regulation should
apply to “providers of intermediary services”. It is clarified that this
application is restricted to intermediary services, not affecting the
requirements established in European Union or national legisla-
tion “relating to products or services intermediated through inter-
mediary services, including in situations where the intermediary
service constitutes an integral part of another service which is not
an intermediary service as specified in the case law of the Court
of Justice of the European Union”. This is a clear reference to the
CJEU case law referred to in the previous paragraph. The regime of
the Proposal applies irrespective of whether the information society
service is part of an overall service whose principal element is a
service with another legal qualification, provided that it is an inter-
mediary service. The Regulation will not obviously cover the (other
core) service, such as transport or accommodation, which is not an
intermediary service18.
The Regulation is intended to apply to intermediation services,
simply defined by belonging to one of three categories of services:
mere conduit, caching and hosting. The hosting services consist of
the “storage of information provided by, and at the request of, a
recipient of the service”. Explicitly included among hosting services
are online platforms. According to the definition in article 2(h) an
online platform is (i) a provider of a hosting service which, (ii) at the
request of a recipient of the service, (iii) stores and disseminates to
the public information. It is not qualified as an online platform if
the “activity is a minor and purely ancillary feature of another ser-
vice and, for objective and technical reasons cannot be used with-
out that other service, and the integration of the feature into the

17
Jorge Morais Carvalho, Airbnb Ireland Case: One More Piece in the Complex Puzzle Built
by the CJEU Around Digital Platforms and the Concept of Information Society Service,
6/2 ItalLJ (2020), 463-476, 473.
18
Jorge Morais Carvalho, Sentenças Airbnb Ireland e Star Taxi App, Conceito de Serviço
da Sociedade da Informação e Regulação de Plataformas Digitais, RDC – Liber Amico-
rum (2021), 481-510, 508.

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78 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

other service is not a means to circumvent the applicability of this

Regulation”.
The definition of illegal content can be found in article 2(g) in
conjunction with recital 12. Illegal content is any information that
– irrespective of its form, which by itself or in reference to an activ-
ity (that can include the sale of goods and provision of services) –
does not comply with Union law or the law of a Member State. It
is a purposely vague definition, that is intended to be interpreted
in a broad manner, due to the horizontal scope of application and
the objectives of the Proposal. The task of defining illegal content
is left to the competent jurisdictional authorities, in reference to
the applicable legislation to each case. Illegal content can there-
fore include “illegal hate speech or terrorist content and unlawful
discriminatory content, or that relates to activities that are illegal,
such as the sharing of images depicting child sexual abuse, unlaw-
ful non-consensual sharing of private images, online stalking, the
sale of non-compliant or counterfeit products, the non-authorised
use of copyright protected material or activities involving infringe-
ments of consumer protection law”19.
Chapters II and III of the Digital Services Act delve deeper into
the responsibilities attributed to providers of intermediary services
(article 2(f)).
Chapter II regulates a subject which is currently provided for
in the e-Commerce Directive. It sets the general rules, namely on
what concerns exemption of liability20. Concretely, it gives the gen-
eral conditions that must be respected for providers of mere con-
duit (article 3), catching (article 4) and hosting services (article 5)
to be exempt from liability due to third-parties’ information they
transmit and store. Furthermore, it also seems to exclude the pos-
sibility of liability of these service providers if they conduct their
own investigations aimed at detecting, identifying, removing, dis-
abling access to illegal content or take the necessary measures in

19
See Recital 12.
20For a general overview of the adopted structure for the Digital Services Act, see Euro-
pean Commission, Digital Services Act cit., 13-16.

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 Introduction to the Digital Services Act, Content Moderation…   | 79

order to comply with the rules set out by EU law in general (article
6). Lastly it sets two final obligations: the prohibition of general
monitoring or active fact-finding (article 7) and the obligation to
respect orders from national judicial or administrative authorities
to act against illegal content and to provide information (articles
8 and 9).
Chapter III sets out due diligence obligations for a transpar-
ent and safe online environment, through five different sections.
Here, the Commission regulates the different intermediary services
according to their activities and sizes, imposing obligations propor-
tional to those two criteria.
The first section consolidates the foundation of the due dili-
gence obligations every intermediary service provider should com-
ply with: the need to establish a single point of contact to facilitate
direct contact with state authorities (article 10), the need to desig-
nate a legal representative in the Union, for those providers that
are not established in any Member States, but who provide their
services inside the territory of the European Union (article 11), the
obligation of setting out on their terms and conditions any restric-
tions they may impose on the use of their services as well as to act
responsibly when applying them (article 12) and, lastly reporting
obligations when it comes to the removal and the disabling of infor-
mation considered to be illegal or contrary to the provider’s terms
and conditions (article 13).
From then on, the next sections regulate specific types of interme-
diary services providers, additionally to what is already enshrined
in Section 1. Section 2 regulates providers of hosting services, oblig-
ing them to put in place mechanisms allowing third parties to notify
the presence of potentially illegal content (article 14) as well as the
obligation to state the reasons for the removal or disabling of access
provided by a recipient of the service (article 15). Sections 3 and
4 regulate online platforms, as complements to Sections 1 and 2.
Therefore, while Section 3 lays general rules applicable to them,
namely in what concerns complaint-handling systems and dispute
resolution (articles 17 to 19), protection against illegal usage of the
platform (articles 20 to 22) and information obligations (articles
23 and 24), Section 4 adds further due diligence responsibilities to

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80 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

very large online platforms21. These concern mainly two additional

aspects: obligations of security and control (articles 26 to 28 and
article 32) and further responsibilities of information and access
(articles 29 to 31 and article 33).
Lastly, Section 5 contains general provisions regarding due
diligence obligations, like the framework for the development of
codes of conduct (articles 35 and 36) and crisis protocols to address
extraordinary circumstances that may affect public health or secu-
rity (article 37).
Chapter IV focuses mainly on the implementation and enforce-
ment of the previous provisions. Through five new sections, it
regulates (i) the national competent authorities – Digital Services
Coordinators – responsible for ensuring the correct implementation
of the Digital Services Act as well as the attributions they must
possess, (ii) the European Board for Digital Services22, (iii) the
supervision of very large online platforms by the Commission, (iv)
information-sharing between the Digital Services Coordinators, the
European Board for Digital Services and the Commission as well as
(v) the adoption of delegated and implementing acts in accordance
with articles 290 and 291 of the Treaty on the Functioning of the
European Union.
Lastly, we have Chapter V containing the final provisions of the
Regulation, related with amendments to other Directives, its evalu-
ation and entry into force.

21
According to article 25 these are “online platforms which provide their services to a
number of average monthly active recipients of the service in the Union equal to or higher
than 45 million (...)”.
22
Article 47 states that the European Board for Digital Services is an “[a]n independent
advisory group of Digital Services Coordinators on the supervision of providers of inter-
mediary services(...)”, responsible for: “[c]ontributing to the consistent application of this
Regulation and effective cooperation of the Digital Services Coordinators and the Commis-
sion with regard to matters covered by this Regulation”, “coordinating and contributing
to guidance and analysis of the Commission and Digital Services Coordinators and other
competent authorities on emerging issues across the internal market with regard to mat-
ters covered by this Regulation” and “assisting the Digital Services Coordinators and the
Commission in the supervision of very large online platforms”.

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 Introduction to the Digital Services Act, Content Moderation…   | 81

This being the structure of the regulatory framework offered by

the Proposal, we cannot forget that in order to fully understand
it, one must take into account the remaining legal acquis that has
been adopted in regard to the Digital Market and Digital Services
in particular.

2.2. The Digital Services Act in the European legal system

The Digital Services Act offers an update to the current EU

framework regulating the digital market and intermediary services
in general. However, it is not an isolated legislative instrument.
In fact, and as stated by the Commission in the Proposal, the
most important piece of legislation when it comes to digital services
is the e-Commerce Directive23. Accordingly, the Digital Services
Act is meant to build on the provisions enshrined therein, espe-
cially when it comes to article 3 and the internal market principle24.
However, as already mentioned, the provisions on the exemption of
liability of providers of mere conduit, caching and hosting services
are moved to the Digital Services Act, and the corresponding provi-
sions of the e-Commerce Directive are repealed. It may be a good
idea to also use the Digital Services Act to fundamentally amend
the e-Commerce Directive, as its rules are already dated. They were
drafted with reference to a fledgling digital market and we now
have rampant technological developments linked to new regula-
tory challenges. The COVID-19 pandemic has further accentuated
this need to update the e-Commerce legal regime. If this Proposal
is upheld, the existing provisions and principles on the freedom of
establishment, the duty of information, commercial communica-
tions and contracts concluded by electronic means will remain in
force. It also does not solve the problem raised by the aforemen-
tioned Uber and Airbnb judgments of the CJEU, which rule out

23European Commission, Digital Services Act cit., 3.

24
Furthermore, we may see that the material scope of the Digital Services Act is broader
than that of the e-Commerce Directive, since the draft rules apply to online intermediary
services. In that sense, see EPRS, Digital Services Act cit., 5.

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82 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

the application of all the e-Commerce Directive in cases where a

platform is not qualified as providing an information society service
and not only the application of the internal market principle (as is
the aim of that case law). We believe there is no reason not to apply
the provisions on information duties, commercial communications
and contracts concluded by electronic means to platforms such as
Uber. The problem is identified in the Proposal, but resolved only
here and not also with regard to the e-Commerce Directive.
The Digital Services Act also aims at complementing sector-
specific instruments, which act as lex specialis. This proposal is for
instance without prejudice to Directives such as Directive 2010/13/
EC, as amended by Directive (EU) 2018/1808, on video-sharing
platform providers25, in as much as it goes beyond what is stated
by the Digital Services Act26. The same logic applies to Regulation
(EU) 2019/1150 on promoting fairness and transparency for busi-
ness users of online intermediation services, which also acts as lex
specialis to the Digital Services Act27.
This proposal is also intended to complement the consumer law
acquis. Consumer protection is the topic of an autonomous section
of this text, where the analysis of this question is referred to as well.

2.3. The Digital Services Act and the General Data Protec-

tion Regulation

The GDPR complements the Digital Services Act, namely when

it comes to the right of information, and online advertisement28. In

25
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010
on the coordination of certain provisions laid down by law, regulation or administrative
action in Member States concerning the provision of audiovisual media services (Audiovi-
sual Media Services Directive), 1-24.
26 European Commission, Digital Services Act cit., 4, 5 and 19.

27 European Commission, Digital Services Act cit., 4, 5, 19 and 20.

28
European Commission, Digital Services Act cit., 5, 19 and 20; EDPS, Opinion 1/2021
(10.02.2021), 7. Available at EDPS: https://edps.europa.eu/system/files/2021-02/21-02-10-
opinion_on_digital_services_act_en.pdf (last accessed 14 April 2021).

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 Introduction to the Digital Services Act, Content Moderation…   | 83

fact, the link between the Digital Services Act and the GDPR has
already been explored by the European Data Protection Supervisor
(EDPS) earlier this year.
If we start with the additions that the Digital Services Act brings
in terms of the right to information, article 12-1 complements and is
without prejudice to articles 12 to 14 of the GDPR, thus increasing
the transparency of content moderation practices29. This way, the
information that must be given to data subjects is reinforced in the
context of digital services, through the joint application of the legal
regimes.
Regarding online advertisement, articles 24 and 30 of the Pro-
posal clearly complement what is enshrined in data protection law,
by bringing additional transparency and accountability to targeted
advertisement, without prejudice to the application of the relevant
GDPR provisions and the need for consent30.
There are other sectors where the Proposal for a Digital Services
Act touches the GDPR. For instance, the EDPS mentions the need
to coordinate article 15 of the Proposal with article 22 of the GDPR,
which imposes strict conditions on decisions based solely on auto-
mated processing31. It is also important to mention that the com-
plaint mechanism enshrined in article 17 of the Proposal is without
prejudice to the rights and remedies available to data subjects and
provided for in the GDPR32.
Having in mind the relations between the GDPR and the Pro-
posal, the EDPS welcomes the former, but suggests additional mea-
sures in order to strengthen even more the rights of individuals,
especially when it comes to content moderation and online targeted

29
EDPS, Opinion 1/20 cit., 9.
30
EDPS, Opinion 1/20 cit., 15.
31
It is important to mention that in this context, the EDPS suggest that in order to promote
transparency, article 15(2) of the Proposal should “state unambiguously that information
should in any event be provided on the automated means used for detection and identifica-
tion of illegal content, regardless of whether the subsequent decision involved use of auto-
mated means or not” (see EDPS, Opinion 1/20 cit., 11-12).
32 European Commission, Digital Services Act cit., 30-31; EDPS, Opinion 1/20 cit., 12.

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84 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

advertising33. Thus, the EDPS focuses on the fact that profiling for
the purpose of content moderation should be prohibited unless the
online service provider shows that such measure is necessary to
address the risks identified by the Digital Services Act34. Further-
more, it considers that there should be a ban on online targeted
advertising based on pervasive tracking, as well as a limitation on
data collected for the purpose of targeted advertising35.
Thus, it seems that even though these two documents com-
plement each other in key areas related to the digital market, there
is still a way to go and ideas to be discussed in order to reinforce the
rights of data subjects in a digital context, namely when it comes to
advertising, content moderation and profiling. These issues will be
further addressed in the following chapters of this article, dedicated
to content moderation and consumer protection.

3. Content Moderation in Digital Services

3.1. The exemption of liability for illegal content as a funda-

mental cornerstone for the provision of digital interme-
diary services

Content moderation in online intermediary services has always

been a tricky topic to address, because, unlike traditional media,
these services do not aim to restrict the publication of content with
strict editorial norms and limitations on capacity – quite the con-
trary, the objective is to facilitate, democratize access to an avenue

33 EPRS, Digital Services Act cit., 9; EDPS, Press Release: EDPS Opinions on the Digital
Services Act and the Digital Markets Act, Brussels (10.02.2021), 1. Available at EDPS:
https://edps.europa.eu/system/files/2021-02/edps-2021-01-opinion-on-digital-services-act-
package_en.pdf (last accessed 14 April 2021).
34 EPRS, Digital Services Act cit., 9; EDPS, Press Release: EDPS Opinions on the Digital

Services Act cit, 1.

35 EPRS, Digital Services Act cit., 9; EDPS, Press Release: EDPS Opinions on the Digital

Services Act cit, 1.

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 Introduction to the Digital Services Act, Content Moderation…   | 85

for publication, storage and communication of information – they

therefore tend to assume the role of passive intermediaries36.
From the beginning, the sheer amount of content generated
and uploaded by users (text, images, audio and video) was already
extremely challenging to analyse, classify and detect if there were
problems with it. And, as the years progressed, so did technology:
with massive improvements in internet speed, memory storage and
file compressing (just to name a few) accompanied by much wider
societal access to personal computers, smartphones and internet,
the task of moderating online content became “humanely” impos-
sible – in 2015, more than 400 hours of video were upload every
minute on YouTube37.
However, as many have pointed out, alongside the exponential
growth of online communications, user generated content and its
wide societal, political and economic effects, so did the resources,
tools and power of Internet-enterprises that operate these interme-
diary services and collaborative platforms.
The rise of disinformation, cybercrime, elections-meddling inci-
dents, “cancel culture” and concerns over data protection and copy-
right have, once again, after 20 years, brought the spotlight onto
the role of these service providers – in both sides of the Atlantic
Ocean.
In Europe, the DSA’s legislative process represents a timely
opportunity to review the policy choices made in the e-Commerce
Directive in 2000, in the infancy of the Internet, and ascertain the
best model for the distribution of liability and content moderation
duties over communications performed by users on intermediary
services.
So, how did we get here?

36
For further insight on the reasons behind this dichotomy between the publisher and host-
ing model, see pp. 3 and following of Peggy Valcke/ Marieke Lenaerts, Who’s author, edi-
tor and publisher in user-generated content? Applying traditional media concepts to UGC
providers, 24/1 Int’l Rev L Comp & Tech (2010), 119-131.
37 Available at Tubefilter: https://www.tubefilter.com/2019/05/07/number-hours-video-

uploaded-to-youtube-per-minute. (last accessed 14 April 2021).

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86 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

In the late 1990s, with the signature of the two WIPO trea-
ties, several States started initiatives to regulate the role of the
then early intermediary digital services. Several approaches were
considered: strict liability, negligence liability, liability under safe
harbour conditions, immunity from sanctions, immunity from sanc-
tions and injunctions. And, concerning the applicable sanctions,
should the intermediaries be subject to the same civil, administra-
tive, or criminal sanctions applied to their users, or different sanc-
tions, lower or of a different kind (merely administrative in nature
and not criminal, for example)38?
There are several arguments to justify and argue against the
imposition of secondary liability to service providers. In favour of
more responsibility, we have:

1) The need to ensure the protection of the victims whose rights

(reputation, privacy, intellectual property, …) have been vio-
lated, and their due compensation. It is almost impossible to
guarantee compensation from the primary infringers: their
identity is masked with pseudonyms, they are not reach-
able, they may reside in completely different jurisdictions
and legal systems, and it is nearly impossible to ascertain
whether they are not insolvent in the first place. To attempt
to hold the primary offenders accountable is a costly endeav-
our with little to no prospects of reparations which hardly
justifies the case itself.
2) By holding the intermediaries accountable to some degree,
they are economically incentivized to adopt measures to
block and terminate illegal activity or even prevent them in
the first place (through upload filters, for example).

38
Giovanni Sartor, Providers Liability: From the eCommerce Directive to the future,
Directorate General For Internal Policies Policy Department A: Economic And Scientific
Policy (2017), 9. Available at Europarl: https://www.europarl.europa.eu/RegData/etudes/
IDAN/2017/614179/IPOL_IDA(2017)614179_EN.pdf (last accessed 14 april 2021).

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 Introduction to the Digital Services Act, Content Moderation…   | 87

Against this rationale, we have the following main considerations:

1) Secondary liability may be a burden too heavy for these inter-

mediaries to provide their services. The sanctions that would
arise might render their business models unviable and exces-
sively risky, forcing them to either abandon or strongly limit
them. This is especially notorious for free services provided
in a non-profit model, not based on advertising revenue, such
as Wikipedia.
2) Without an exemption of secondary liability, in order for the
service to continue to operate with the possibility of countless
cases and sanctions, it might be forced in direction of adopt-
ing measures which excessively constraint the behaviour of
their users. In order not to be held liable for not preventing or
terminating illegal activity, the intermediary pre-emptively
obstructs and blocks all activity that may be perceived as
potentially suspicious, excluding completely lawful activi-
ties of their users or even the exercise of their fundamental
rights.39 This overdeterrence is the natural reaction to the
uncertainty that many kinds of content represent in regards
to the law: certain communications can be considered hate
speech or defamation, in some cases and not in others. Certain
reproductions of copyright protected works can be allowed
under fair use (in the US) and the exceptions and limitations
of article 5 of the InfoSociety Diretive (in the EU)40. Context
is key.

This last concern was already a preoccupation as early as 1995,

when it was coined as “Collateral Censorship” by Meyerson41. Com-
bined with a policy view that innovation should not be stifled and

39
Giovanni Sartor, Providers Liability cit., 12.
40 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001
on the harmonisation of certain aspects of copyright and related rights in the information
society.
41 Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the “Speaker”

Within the New Media, 71/1 Notre Dame L. Rev. (1995), 116, 118.

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that the “Internet Companies” of the time were mere start-ups

and medium size undertakings, the regulations of the late 1990s
adopted a very protective approach to the provision of intermediary
digital services.
In the United States, the legislature followed these concerns
and decided on a mixed approach through two complementary acts:
the Communication Decency Act (CDA) (1996) and the Digital Mil-
lennium Copyright Act (DMCA) (1998).
In the CDA, intermediaries are never considered as publishers
or speakers for the content of their users (Section 230 (c) (1)), and
are able to police and remove content that they may consider as
obscene, lewd, lascivious, filthy, excessively violent, harassing or
otherwise objectionable, without being liable for it, if the removal
is conducted in good faith (Section 230 (c) (2)) – also known as the
“Good Samaritan” clause). In the DMCA, the choice was clearly
for a liability under safe harbour limitations, that is, liability that
requires a clear specific omission, such as failure to respond to
removal requests from authorities and third private parties. Not
to be held liable, the intermediary must have no actual knowledge
that the material is infringing, it cannot be receiving a financial
incentive from it, and upon notification from the rightsholder, it
must block the allegedly infringing content.
In the EU, this matter was addressed in the e-Commerce Direc-
tive 2000/31/EC, a horizontal directive addressing the first main
matters of e-Commerce and long-distance digital contracts. In this
directive, the main provisions to be transposed to the Member
States’ legal systems, pertaining to the intermediary liability and
content moderation, can be found in articles 12 to 15. Not only does
the European regulation address the matter of illegal content as a
whole, without creating a different framework for copyright infringe-
ment liability, it also differs from the American Acts by distinguish-
ing different categories of services, with different conditions.
For services of mere conduit of data, the Directive establishes
that service providers can be protected from liability if they assume
a passive role in relation to the data being transmitted (when they
do not initiate the transmission, select the receiver or modify any
of the receiver’s information). For all intents and purposes, it treats

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 Introduction to the Digital Services Act, Content Moderation…   | 89

all transmissions in the same manner. Only if properly notified by

a court or administrative authority, does it need to take an action
to terminate or prevent an infringement – which also applies to the
remaining services.
For caching services, the conditions for protection change
slightly. Besides the previous requirements, the provider is also
expected to comply with the conditions of access, not interfering
with lawful uses according to industry standards, maintaining the
service updated. They are also expected to remove or disable the
access to illegal content if they become aware of it.
Finally, for hosting content, the intermediary is not liable if it
does not have actual knowledge of the illegal content or the facts or
circumstances from which the illegality derives; only in case the so-
called illegality becomes apparent or the provider is made aware of
it, should adequate action be taken in order to remove such content.
The Directive also enshrines the principle of no general obli-
gation to monitor and seek illegal activity within their services in
order to protect the fundamental rights of freedom and access to
information. However, member states may create specific obliga-
tions42 to report to the public competent authorities, certain kinds
of alleged illegal activity or content on their service43 – an obligation
that is applicable even if the provider satisfies the conditions on
article 14-1, and therefore is not liable44.
These legal frameworks on both sides of the Atlantic, have
shaped the last two decades – a long period of time, in which sev-
eral factors changed in unforeseen manners. New business models
appeared, and Big Tech companies became extraordinarily power-
ful and resourceful.

42
Recital 47 Directive and CJUE 03-oct.-2019, case C-18/18 (Glawischnig-Piesczek), 34.
43
The extent to which the injunction from the administrative authority can go is also lim-
ited. It cannot impose the adoption of specific measures, nor can impose an excessive bur-
den on the provider. It needs to take in consideration the fundamental rights of all parties
involved, including that it does not unnecessarily deprive access to internet users acting
lawfully. See CJUE 27-mar.-2014, case C314/12 UPC (Telekabel Wien).
44 Recital 45 Directive and CJUE 03-oct.-2019, case C-18/18 (Glawischnig-Piesczek), 24.

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3.2. Self-regulation in practice: what did we learn from the

last 20 years?

While neither the European legislation nor the American Acts

imposed general duties for content moderation (the CDA gave a
figurative sword for the policing of “obscene” content but no obliga-
tion to use it), several market factors pushed the larger companies
– more exposed to litigation and boycotting from advertising com-
panies, collective management organizations and other commercial
partners – to take action on the proliferation of illegal content in
their platforms.
Alongside these commercial pressures to tackle the rampant
copyright infringement, the exponential growth of violent con-
tent related to terrorism worried many EU public authorities,
and brought about a myriad of national and European legislations
enforcing procedures to take down certain kinds of illegal content45.
Finally, in the last few years, the rise of hate speech also placed
an additional pressure on these providers to enforce their terms
of service and take some preventive actions against this kind of
behaviours.
From the early 2000s, the most immediate solution for modera-
tion in platforms, in online forums or services alike, was the adop-
tion of administrators (“admins” or internal officers in the provider)
and moderators (“mods”, trusted individual users of the service,
but the nomenclature may change) with the function and powers to
police message boards, receive complaints, solve disputes, analyse
the conformity of flagged content, block it and either suspend or
ban the user that posted it. This approach has shown to be inef-
fective and somewhat flawed: 1) it is not scalable and replicable

45
For example, European Commission, Commission Recommendation of 1.3.2018 on mea-
sures to effectively tackle illegal content online (C(2018) 1177 final), 01-mar.-2018. Available
at European Commission: https://www.ec.europa.eu/digital-single-market/en/news/commis-
sion-recommendation-measures-effectively-tackle-illegal-content-online (last accessed 14
April 2021); European Commission, The Commission Code of Practice on Disinformation,
16-mar.-2021. Available at European Commission: https://www.ec.europa.eu/digital-single-
market/en/code-practice-disinformation (last accessed 14 April 2021).

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 Introduction to the Digital Services Act, Content Moderation…   | 91

in many services; 2) it relies heavily on the users themselves, sus-

ceptible to bias, power abuse and may promote the emergence of
echo-chambers; 3) and it is not nearly effective enough for the vol-
ume of content uploaded by users. In a recent example, the social
network Parler used a system where all notices of illegal content
and infringements of the Terms of Service were evaluated by panels
of users, in a sort of court by peers. Some of the above-mentioned
flaws occurred with great effect46. This kind of system needs to be
complemented with other mechanisms47.
From the late 2000s, the big platforms decided to employ algo-
rithmic moderation48, that is, to employ automated means of rec-
ognising illegal content, and later, to even work together in con-
sortiums, such as the Global Internet Forum to Counter Terrorism
(GIFCT), to aid in the enforcement of the European Commission’s
code of conduct to combat illegal online hate speech49 within their
respective services. Most forms of algorithmic moderation, such as
matching, hash-matching and classification, in conjunction with

46
It has been reported by several media organizations and in the court filings of the still
ongoing case Parler LLC v. Amazon Web Services, Inc before U.S. District Judge Barbara
Rothstein in the Western District of Washington, that prior to 6th January, Parler had failed
to take down violent hate speech and that it admitted to having a backlog of over 26.000
complaints unanswered. See https://www.cnbc.com/2021/01/13/amazon-says-violent-posts-
forced-it-to-drop-parler-from-its-web-hosting-service.html. (last accessed 14 April 2021).
47 For example, Facebook still complements their automated systems with human mod-

erators. This has also shown that this task takes an heavy toll on the individuals’ mental
health. See: BBC, Facebook to pay $52m to content moderators over PTSD. Available at BBC:
https://www.bbc.com/news/technology-52642633 (last accessed 14 April 2021); and The
Verge, The Trauma Floor – The secret lives of Facebook moderators in America. Available
at The Verge: https://www.theverge.com/2019/2/25/18229714/cognizant-facebook-content-
moderator-interviews-trauma-working-conditions-arizona. (last accessed 14 April 2021).
48 For more information, see Robert Gorwa/ Reuben Binns/ Christian Katzenbach, Algo-

rithmic content moderation: Technical and political challenges in the automation of plat-
form governance, BD&S (28-fev.-2020). Available at Sage: https://www.journals.sagepub.
com/doi/full/10.1177/2053951719897945 (last accessed 14 April 2021).
49
European Commission, The EU Code of conduct on countering illegal hate speech online.
Available at European Commission: https://www.ec.europa.eu/info/policies/justice-and-
fundamental-rights/combatting-discrimination/racism-and-xenophobia/eu-code-conduct-
countering-illegal-hate-speech-online_en. (last accessed 14 April 2021).

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constantly updated databases of copyright protected works and

illegal content, have proven themselves to have some effectiveness
in finding “matches” and blocking illegal content – especially copy-
right infringements and terrorism related content. The matter of
hate speech has proven itself to be much more difficult to address,
due to the limitations of algorithms in understanding the nuances
of speech and context itself.
Nevertheless, even algorithms are still flawed tools. They are
prone to false negatives (users can still find means to circumvent
their detection) and, to a much greater effect, false positives, that
is, blocking lawful content. This is especially grievous in copyright
detection systems, such as Youtube’s Content ID System50. Because
of the way the American DMCA and the European e-Commerce
Directive constructed the liability – without redress mechanisms
for the recipients and consequences for misuse – the service provid-
ers have an incentive to, even when in doubt, always block content.
Then, the recipient that provided it, will also not have access to
adequate (non-automated) redress options to appeal the automated
decision – resulting in the phenomenon that lawmakers were ini-
tially trying to mitigate in the first place: collateral censorship and
the infringement of the fundamental rights of user.

3.3. The Digital Service Acts and content moderation

Contrary to many people’s expectations, the Commission’s pro-

posal for the DSA does not tackle the problem of intermediary lia-
bility and content moderation by attempting to reinvent the wheel
and forcing a bigger surveillance by service providers. Instead, it
aims to shed greater transparency over the whole process and give
concrete uniform provisions for the action and takedown of illegal
content, and the means for the affected users to appeal against
decisions, in order to mitigate the risks of erroneous or unjustified

50 Robert Gorwa/ Reuben Binns/ Christian Katzenbach, Algorithmic content moderation

cit., 7-8.

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 Introduction to the Digital Services Act, Content Moderation…   | 93

blocking of lawful speech – a problem that we saw arose from over-

zealous platforms and rightsholders abusing their positions.
The DSA repeals articles 12 to 15 of the e-Commerce Directive,
related to the “mere conduit”, “catching”, “hosting” and “no general
obligation to monitor content”, and replaces them with its own ver-
sion – namely articles 3, 4, 5 and 7 of the Commission’s proposal, as
per article 71.
When comparing the articles in both texts it stands out that
for the services of mere conduit and catching, the conditions for
the exemption of liability stay the same, while for hosting services
there was a inclusion of a provision lifting the exemption of liability
for violations of consumer law by certain online marketplaces, a
topic which will be further developed in section 4.5 of this article.
The principle of no general obligation to monitor content also
persists in the new version (albeit with a different text) – as it was
stressed by the Commission in the proposal’s text51: “The proposed
legislation will preserve the prohibition of general monitoring obli-
gations of the e-Commerce Directive, which in itself is crucial to
the required fair balance of fundamental rights in the online world.
The new Regulation prohibits general monitoring obligations, as
they could disproportionately limit users’ freedom of expression and
freedom to receive information and could burden service providers
excessively and thus unduly interfere with their freedom to conduct
a business. The prohibition also limits incentives for online surveil-
lance and has positive implications for the protection of personal
data and privacy.”
The regulation also includes a novel “Good Samaritan” clause in
article 6, which maintains the protection from liability of articles 3
to 5, for voluntary investigations launched by the service provider
itself.
For the takedown of content, the proposal aims at establishing
new rules for the relationships between service providers, public
authorities, and judicial bodies in the articles 8 and 9, and between

51See the sections “Consistency with existing policy provisions in the policy area”, “Fun-
damental Rights”, “Other Elements” and Recital 28 of the proposal.

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94 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

the provider and other private parties in article 14 and following.

Both now have to comply with a series of requirements absent from
the Directive, improving the transparency of the communication,
reasoning and redress process. Orders from public entities must
have statements of reason why the content is illegal, the relevant
provisions of national and European law, and the scope of the order
to block access, and procedures for both the provider and the recipi-
ent of the service that provided the content to defend themselves.
In article 14, for private individuals and entities, the request for
takedown must contain their identification, the clear location of the
alleged content (may require exact URLs), a statement confirming
that they are acting in good faith, and a full and comprehensive
statement of reasons, abiding by the requiring of article 15, explain-
ing why they alleged that the content should be considered illegal
(if it pertains to copyright infringement, proof of being the actual
rightsholder, for example).
Then, the DSA introduces in articles 16 and following a much-
needed set of requirements, not applicable to micro or small enter-
prises, aimed at countering the effects of frivolous and automated
notices, and overzealous takedowns of content, mitigating the
effects of collateral censorship52: free internal complaint-handling
systems, which are user-friendly, that function diligently and in
a timely manner, capable of reversing wrongful decisions of take-
down, with limited automation (article 17), out-of-court dispute res-
olution (article 18)53, the suspension of the notice and action mecha-
nism for actors whose complaints are frequently unfounded (article
20-2), the suspension for users that frequently provide illegal con-
tent (article 20-1), and a close contact and cooperation with trusted
flaggers54 (article 19). Trusted flaggers are legal persons, private or

52
See Recital 47.
53
Conducted by certified bodies, whose fees should be reasonable, and fully reimbursed by
the provider to the user, if the dispute is solved in their favour.
54
This concept of trusted flaggers was also already present in European Commission, Com-
mission Recommendation cit., recitals 29 and 34, paragraphs 4 (g) and 25 to 27, with some
differences in relation to the DSA. For example, in the Recommendation, Trusted flaggers
could be individuals, natural persons.

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 Introduction to the Digital Services Act, Content Moderation…   | 95

public, recognised by Member States and European agencies, that

possess special knowledge and experience in the identification of
illegal content55.
Regarding content moderation, the DSA implements new trans-
parency requirements and brings actual balance to the way notice
and takedown actions occur, ultimately protecting consumers’ fun-
damental rights. It takes away the existing incentives that lead to
service providers to engage in rampant over-blocking of alleged ille-
gal content denounced, for instance, by their commercial partners
and collective management organizations. It achieves this by shift-
ing part of the burden from the content recipient to the denouncer
and service provider, which has to ensure both a reliable notice and
action mechanism, with consequences for its misuse, and an ade-
quate redress process for the recipient.

4. Consumer protection in the Digital Services Act

Although the Digital Services Act is not structured with a

view to protect consumers, there are several provisions in it that
strengthen their position.
First of all, it is important to note that it is expressly stated that
the EU acquis in the field of consumer law is not affected (see recital
10 and article 1-5(h) of the Proposal). The recital makes express
reference to Directive 93/13/EEC56, Directive 98/6/EC57, Directive
2005/29/EC58 and Directive 2011/83/EU59, all amended by Directive
(EU) 2019/2161)60.

55
See recitals 36 and 46.
56
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.
57 Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998

on consumer protection in the indication of the prices of products offered to consumers.

58
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the
European Parliament and of the Council.
59
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011

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The fact is that, while it is generally argued that the consumer

protection directives remain applicable, the principle of neutrality
of digital platforms may affect the practical application of consumer
law in many cases where it might be justified to hold platforms
liable. The very consideration that platforms merely provide host-
ing services is, from the outset, very doubtful.
However, this is the regime we have, and the essence of the
approach already taken by the e-Commerce Directive is maintained.
The definitions of consumer and trader (article 2(c) and (e) of
the Proposal) are unsurprising and correspond to previous EU legal
acts. Apart from the trader, it is also important to realise that the
consumer relationship can be established directly between the con-
sumer and the online platform. The truth is that this B2C relation-
ship is not addressed directly and fully adequately by the Act. This
is, in fact, one of our main criticisms in this context.
We will now move on to a brief successive analysis of the themes
that seem most relevant to us from a consumer law perspective:
traceability, pre-contractual information and product safety infor-
mation, advertisement, recommender systems and liability of online
platforms.
60

4.1. Traceability

One of the provisions of the Digital Services Act that is most

aimed at consumer protection and which may be particularly rel-
evant to consumers is the one that imposes duties on platforms to
ensure the traceability of traders (see recital 49).

on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of

the European Parliament and of the Council and repealing Council Directive 85/577/EEC
and Directive 97/7/EC of the European Parliament and of the Council.
60
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011
on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of
the European Parliament and of the Council and repealing Council Directive 85/577/EEC
and Directive 97/7/EC of the European Parliament and of the Council.

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Article 22 applies only to online platforms that allow consum-

ers to conclude contracts with traders. The platform operator shall
ensure that traders can only be present in the platform if they
provide a series of relevant information regarding their identifica-
tion. Apart from this duty, the platform operator shall also “make
reasonable efforts” to assess whether the information is reliable,
request the trader to correct the information that is inaccurate or
incomplete, and suspend the trader until that correction is made.
The information shall be stored for the duration of the contractual
relationship between the parties. The consumer has the right to
access this information “in a clear, easily accessible and comprehen-
sible manner”.
This information can be very important for the consumer to be
able to exercise his rights against the trader.

4.2. Pre-contractual information and product

safety information

Lost in article 22 is a provision that deals not with traceability

but with the interface design of digital platforms.
Paragraph 7 stipulates that the online interface of the platform
shall be designed and organised “in a way that enables traders to
comply with their obligations regarding pre-contractual informa-
tion and product safety information under applicable Union law”.
We are talking about the information duties that are basically
contained in the consumer law directives. Recital 50 expressly
refers, as an example, to articles 6 and 8 of Directive 2011/83/EU
(consumer rights), article 7 of Directive 2005/29/EC (unfair com-
mercial practices) and article 3 of Directive 98/6/EC (indication of
the prices).
The platform is intended to make it easier for the trader to com-
ply with these information duties, thus ensuring that consumers
have easier access to the information in question.
One issue that seems to be left open here is that of the conse-
quences if platforms fail to comply with this obligation.

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4.3. Advertisement transparency

Another aspect tackled by the Digital Services Act concerns con-

sumer protection regarding the principle of identifiability of adver-
tising. Article 24 requires the consumer to be immediately able and
to clearly perceive each advertisement message as such.
The legislation goes even further by also requiring an indication
of the person on whose behalf the advertising message is issued,
that is, as a rule, the trader, with whom the consumer may then
conclude a future contract.
The main parameters used to define on what basis the adver-
tisement was shown to that particular person and not to another
should also be indicated. The automation and personalisation of
advertising make it possible to select the recipients increasingly
precise and rigorous way, possibly giving rise to problems of dis-
crimination and non-transparent practices linked to the collection
and processing of consumer data.
In addition to the GDPR, this issue is also regulated by the
Unfair Commercial Practices Directive, with which the Digital Ser-
vices Act should be articulated in this field.

4.4. Recommender systems

The Digital Services Act also contains a provision to strengthen

transparency around recommender systems (article 29). It is spe-
cially addressed to very large platforms, i.e. “platforms which pro-
vide their services to a number of average monthly active recipi-
ents of the service in the Union equal to or higher than 45 million”
(article 25).
Article 2(o) defines “recommender system” as “a fully or par-
tially automated system used by an online platform to suggest in
its online interface specific information to the service recipients,
as a result of a search initiated by the recipient included, or other-
wise determining the relative order or prominence of information
displayed”.

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It is recognised in recital 62 that the prioritisation and presenta-

tion of the information is an important part of the platform’s busi-
ness. Examples of such practices include algorithmic suggestions,
rankings and the order in which information is presented. Much of
the success of these large platforms lies precisely in the way infor-
mation is presented. This is what consumers most look for.
The Digital Services Act aims to ensure that, with regard to the
information presented, consumers are, on the one hand, adequately
informed about the criteria for presenting it in a particular way
and, on the other hand, are able to influence the way it is presented.
The online platforms must give consumers several alternative pos-
sibilities regarding the main parameters for prioritisation of infor-
mation, including at least one that is not based on profiling. The
possibilities should be easily accessible.
The possibility of these recommender systems being an instru-
ment for the dissemination of fake news or other illegal information
means that risk analysis and mitigation measures by very large
online platforms should also take them into account (articles 26-2
and 27-1).

4.5. Liability

We now turn to the analysis of what seems to us to be the most

relevant and innovative provision of the Digital Services Act in
relation to consumer protection.
Under article 5-3, the general principle of non-liability of host-
ing service providers shall not apply “with respect to liability under
consumer protection law of online platforms allowing consumers
to conclude distance contracts with traders, where such an online
platform presents the specific item of information or otherwise
enables the specific transaction at issue in a way that would lead
an average and reasonably well-informed consumer to believe that
the information, or the product or service that is the object of the
transaction, is provided either by the online platform itself or by a
recipient of the service who is acting under its authority or control”.
We present three main criticisms of this provision.

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Firstly, it is not at all clear what is meant by “where such an

online platform presents the specific item of information or oth-
erwise enables the specific transaction at issue”. It will probably
be the information that can be accessed on the online platform, in
which case, we think it can be stated in rather a clearer way.
The second problematic element in this very important rule is
the effective materialisation of the concept of “average and reason-
ably well-informed consumer”, which leads to some legal uncer-
tainty. Although there is already some CJEU case law on the mat-
ter, the boundaries are very blurred. Relying on this concept for this
purpose, which is so relevant, seems that it might not be the best
solution.
The same can be said about the concept of “acting under its
authority or control”, which is the decisive element of this provision.
Does Airbnb exercise control over hosts? We would say yes, under
the terms of this provision, but we suspect many people, certainly
including Airbnb itself, will say no. We are presented a concept
which raises this kind of difficulties in relation to a platform like
Airbnb, which clearly has a control over hosts, or at least should
have some degree of responsibility, because of the importance it has
in the contract entered into through it. And the truth is that at this
moment it is virtually impossible to say what the interpretation of
the regulation will be61.
Another issue that can be raised here is the actual scope of the
liability exemption when consumer protection provisions are at
stake. At least as regards consumer sales and the supply of digital
content or digital services it seems possible to hold platforms liable
for the lack of conformity of the digital good, digital content or digi-
tal service even in cases not foreseen in this article of the Digital
Services Act.
Using Directive 2019/771 as a reference, it follows from its
recital 23: “Member States should remain free to extend the appli-

61
On this issue, see the article 20 of the ELI Model Rules on Online Platforms, which
impose the liability of the platform operator with predominant influence. See Joana Cam-
pos Carvalho, Online Platforms: Concept, Role in the Conclusion of Contracts and Current
Legal Framework in Europe, 12/1 CDT (2020), 863-874, 873-874.

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 Introduction to the Digital Services Act, Content Moderation…   | 101

cation of this Directive to platform providers that do not fulfil the

requirements for being considered a seller under this Directive”,
i.e., platforms that are providing hosting services as intermediaries
between the consumer and the trader62. Member States may thus
provide that the platform is liable for the lack of conformity of the
goods sold by a third party.

5. Conclusion

The Commission’s proposal reveals itself both too ambitious and

not ambitious enough. As we have outline in this text, it serves
neatly its purpose of uniformization of many horizontal matters
in e-Commerce, successively updating many principles and provi-
sions for Digital Services in the European Internal Market. It also
aims to complement the GDPR in several areas, namely the right
of information, data collection and tracking for profiling in adver-
tisement and recommender systems – but in this regard, the EDPS
raised some criticisms that should be considered during the legisla-
tive process.
On the matter of content moderation, we have showcased the
existing legal framework, its origins and flaws, and how the DSA
attempts to correct them by building upon the e-Commerce Direc-
tive’s principles and codifying many provisions from the Commis-
sions’ recommendation of 2018 – with a great focus on transpar-
ency and redress procedures on decisions to block access to alleged
illegal content. If implemented, these changes will certainly cause
a great effect worldwide due to the objective scope of the regulation
and the value of the European Single Market – even if other legal
orders (such as the United States) do not address these issues, the
so-called Brussels effect63 will push private enterprises to comply
and give rise to similar legislative initiatives.

62 Jorge Morais Carvalho, Sale of Goods and Supply of Digital Content and Digital Ser-
vices, 5 EuCML (2019), 194-201, 196.
63 For more information regarding the soft power of European regulation worldwide, see

https://www.brusselseffect.com.

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102 | Jorge Morais Carvalho, Francisco Arga e Lima, Martim Farinha

Yet, as the EDPS is critical of the provisions regarding data pro-

tection in the DSA, many others have also been disapproving on
its approach to content moderation, claiming that it does not “go
far enough”. Some warn of the dangers to freedom of expression
posed by systems of privatised content control and that the rules on
enforcement and redress should be improved64, while others in the
European Parliament call for an expansion of its scope to include
“harmful content”65. The next phases of the legislative process might
become the opening of the Pandora’s Box on this regard, and the
nature of its impact (whether positive or negative) is still unclear.
Finally, we have also addressed how the provisions regarding
consumer protection are welcomed and flawed in many instances.
The regulation should have consumer protection as an explicit objec-
tive, reflected in its provisions66. Many of the proposal’s provisions
lack clarity and use concepts that will leave many consumers with-
out protection and in legal uncertainty, especially those regarding
platform’s liability. While innovative, the DSA clearly struggles on
this regard and should articulate better with the existing European
consumer law acquis.
The next phases of the legislative procedure of this regula-
tion will prove to be crucial. There are very different policy views
regarding the matters addressed in the proposal, present in both
the European Council and the Parliament. For now, the Commis-
sion’s initiative will mark the agenda, but the upcoming debates
will certainly be very interesting. On the other side of the Atlantic,
the political will to initiate the legislative process is also brewing.
We shall continue to pay close attention to this topic.

64 EPRS, Digital Services Act cit., 8-9.

65
See the European Parliament resolution on the Digital Services Act and fundamental
rights issues posed doc. 2020/2022(INI), 20-oct.-2020 and the EPP position. Available at
EPP: https://www.eppgroup.eu/newsroom/publications/epp-group-position-on-the-digital-
services-act-dsa (last accessed 14 April 2021).
66
BEUC, EU proposals to shape the digital landscape, a step forward for consumers. Avail-
able at BEUC: https://www.beuc.eu/blog/eu-proposals-to-shape-the-digital-landscape-a-
step-forward-for-consumers/ (last accessed 14 April 2021).

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 Introduction to the Digital Services Act, Content Moderation…   | 103

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