Holznagel, Daniel

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Follow Me to Unregulated Waters!Daniel Holznagel 2024-05-30T11:37:12The Digital Services Act (DSA) is aiming at making the internet safer. Amongstothers, the DSA is empowering users to notify platforms about illegal content and(!) to make them take action—so called “notice and action”, Art. 16 DSA. Just afew weeks ago, the European Commission opened proceedings against Metaconcerning, amongst others, its reporting mechanisms. Obviously, the Commissionis suspecting infringements by Meta in this field—though no details have beenpublished as of today.In this article, I will demonstrate how some major platforms are failing to properlyimplement the DSA’s rules on notice and action mechanisms. In my view, manyplatforms are unduly nudging potential notice-senders (hereinafter: reporters) tosubmit weak, largely unregulated Community Standards flags. At the same time,platforms are deterring users from submitting (strong) notices regulated under theDSA.For illustration, TikTok will serve as an example. However, many online platforms areshowing similar flaws. E.g., Facebook’s and Instagram’s reporting mechanisms areas problematic as TikTok’s.The findings in this article are based on a collaboration with the Human RightsOrganization HateAid, which has launched broad investigations into reportingmechanisms of all major platforms.Parallel ReportingFor a better understanding I shall firstly explain the phenomenon of parallel reportingflows. Theoretically, platforms could take Art. 16 DSA as a floor, not as a ceiling, andtreat all content moderation reporting according to the standards set out in Art. 16DSA. However, all major platforms opted against this. Instead, they are channelingreporting into two then strictly separated sets of complaints:• (mostly unregulated) complaints about alleged violations of CommunityStandards or Terms of Services (ToS), hereinafter: ToS-flag,• (regulated) complaints about possible violations of EU- or Member States laws,hereinafter: DSA-notice.To some extent, platforms can justify this separation with transparency obligations,as they are required to report on the metrics of DSA-notices. However, platformsmight follow a purely economic rationale when, beyond differentiating fortransparency reasons, they heavily aim at putting reports into two very distinctcategories and treating them differently: DSA-notices must be processed underthe regulatory umbrella and oversight of the DSA, while ToS-flags are much less- 1 -regulated. On average, processing of DSA-notices requires more resources andmight lead to stricter accountability. E.g., refusing to act on notified content afterreceiving DSA-notices might result in costly follow-on-measures through Art. 20,21 DSA (which require human intervention). Moreover, only DSA-notices mighttrigger strong regulatory oversight, e.g. regarding Art. 16(6) S. 1 DSA which requiresplatforms to “process … notices … in a timely, diligent, non-arbitrary and objectivemanner”. Therefore, one can assume that platforms prefer to have reporters sendthem ToS-flags instead of DSA-notices.And indeed, platforms are (unduly) designing their reporting mechanisms to fostersuch outcomes:Illustration: TikTok’s Reporting MechanismNowadays, most reporting of content takes place through pre-designed click-throughreporting flows. Interestingly, major platforms opted for a pretty similar design ofthese reporting flows. Platform design here mainly consists of three relevant stages,which I refer to as “Initiation”, “Segregation” and “Submission”. Let me illustrate thisfor TikTok:Step 1—InitiationUsers can enter the reporting process through symbols directlyattributable to the piece of content in question (hereinafter “Initiation”-stage of reporting mechanisms). Platforms might use a flag-symbol,three dots, or—as illustrated here mimicking TikTok’s in-App-design—an arrow (which leads reporters to a submenu containing a flag-symbol):- 2 -(illustration: Initiation-stage with Arrow-link)Step 2—SegregationClicking on the arrow and then (in the submenu) on “Report” will lead to a second,most consequential stage where reporters are asked to specify their concern(hereinafter: Segregation-stage), as shown in the next illustration simulating TikTok’sdesign:(illustration: Segregation-stage)- 3 -Reporters are asked to “select a reason” from a list of categories of prohibitedcontent, for most parts mirroring the platform’s Community Standards. But thatlist also includes a link referring to “illegal content”, e.g. for TikTok: “Report illegalcontent”. For TikTok, note that, with some smartphones, it is necessary to scroll a bitto find the link “Report illegal content”.From a platform perspective, this Segregation-stage is crucial, as it will determinewhether the platform will treat the respective report as a mere ToS-flag or a DSA-notice. We must assume that platforms only treat reports as DSA-notices whenreporters click “Report illegal content” (in the example). Transparency reportingaccording to Art. 15 DSA supports this assumption (reported metrics for DSA-noticessupport the conclusion; some platforms even provide corresponding explanation,e.g. TikTok’s DSA Transparency Report September to December 2023, p. 4: “… wehave introduced an additional reporting channel … to ‘Report Illegal Content,# whichenables users to alert us to content they believe breaches the law”).Step 3–SubmissionFollowing this Separation-stage, reporters are then taken to the final stage of theprocess, where they are asked to submit their report. However, this Submission-stage is heavily segregated, meaning that it looks very different for ToS-flagscompared to DSA-notices.If reporters had been clicking on one of the many descriptions for CommunityStandards violations (e.g. “Hate and harassment”), their (ToS) Submission-stage willlook pretty neat and easy:(illustration: Submission-stage for ToS-flags)- 4 -However, when, at prior Segregation-stage, reporters had been clicking “Reportillegal content” leading platforms to treat the report as a DSA-notice, then things getcomplicated, and reporters are directed to a rather deterring Submission-stage, as(abstractly) illustrated for TikTok here:(illustration: Submission-stage for DSA-notices)In this case, reporters are obliged to specify “Legal jurisdiction”, and to provide anemail address (this is only required for logged out users, not shown in the graphic),a “Report Explanation”, a “Signature” (“legal name”) and a confirmation of accuracy.Moreover, reporters are warned about possible consequences of unfounded reports(it requires scrolling to see the warning, not shown in the graphic above).Reporting Mechanisms Not “User-Friendly”In my view, the platform design illustrated above goes against the imperative of Art.16(1) to put in place “easy to access and user-friendly” reporting mechanisms:Initiation-Stage:Initiation not easy to access: On TikTok’s app, the most conventional way to enterthe reporting mechanism is through clicking the arrow-symbol, which will lead you- 5 -to a submenu containing a “Report”-link. However, the arrow’s main function is well-known for sharing content. Thus, users might not expect an entry to reporting. Onemight therefore argue that in TikTok’s app, reporting mechanisms are not “easy toaccess” (Art. 16(1) S. 2 DSA), as they are not “clearly identifiable” (as required byRecital 50 S. 3 DSA).Segregation-Stage:Misleading users towards uninformed decisions: At Segregation-stage, reportersmight be misled about the consequences of the decision they are about to make.The platform is seemingly asking to specify the nature of the reported content(“Select a reason”). But without explicit explanation, the platform will use the decisionto determine the legal nature of the report (weak ToS-flag or strong DSA-notice).“Report illegal content” is difficult to find: It seems that only the link “Report illegalcontent” will make the platform treat a user’s reporting as a strong DSA-notice.However, it takes some effort to identify the relevant hyperlink (one link among manyothers, all indicating somewhat similar “reasons”) and scrolling might be required tofind the link.Nudging reporters against their legitimate interests: Both aforementioned factorsimplicate a substantial nudging towards (weak) ToS-flagging. This nudging comes atthe cost of legitimate interests of users: Average reporters might not think about thedifferentiations between ToS-flags and DSA-notices at all. In doubt, platforms shouldassume that reporters will prefer to rely on a robust (and regulated) notificationregime, that is, a (strong) Art. 16 DSA-notice. When platforms are trying to turn thislogic upside-down by incentivizing ToS-flagging over DSA-notices, they are doing soonly in their own economic interests and at the costs of average reporters’ legitimateinterests.Submission-Stage:Illegitimate requests: While Art. 16(2) DSA requires platforms “to enable and tofacilitate the submission of notices containing” granular information, Art. 16 does not(!) allow to make such data conditional (Recital 50 S. 5 DSA: “should allow, but notrequire”). Thus, TikTok is illegitimately requiring reporters to provide email address(logged out users), jurisdiction, explanation, and signature. This will deter users fromsubmitting DSA-notices.Burdensome and puzzling requests: TikTok’s request to specify a jurisdiction mightalso confuse reporters: What is TikTok referring to? A legal forum? Applicablespeech restrictions? Most likely: the latter. However, in this case its menu lacks acheck-box for “Union law”. Another shortcoming: Reporters cannot select multiplejurisdictions.Disproportionate warnings: TikTok’s warnings about unfounded reports seem outof proportion. The warnings also seem unbalanced as TikTok does not providerespective warnings for ToS-flags.- 6 -Erroneous Processing of DSA-Notices?Not only does such a platform design lead to a violation of Art. 16(1) DSA (reportingmechanisms not “easy to access and user-friendly”). In my view, it also leads tofollow-on mistakes: As we have seen, platforms are nudging reporters to submit“weak” ToS-flags instead of “strong” DSA-notices. However, this only determinesde-facto treatment of notices: From the platforms’ perspectives, reports will mostlybelong in the bucket of mere “unregulated” ToS-flags. But how platforms categorizea given report does not ultimately determine the true legal nature of that report.Art. 16(1) S. 1 DSA legally defines what a DSA-notice is: A communication (“notify”)about a specific content that the reporter “considers to be illegal content”. Thisdefinition does not depend on how a platform subjectively wants to categorize agiven report. Instead, the following question is decisive: How would a neutral third-party observer interpret the report? To answer this question, platform expectationsmust be considered, but only within the realm of “legitimate expectations” (a well-accepted principle for interpretation of legal declarations). That in mind, one canwell argue that even when reports—through platform nudging and misleading—landin the ToS-bucket, the respective reporter (from a neutral observer’s perspective)might still aim at reporting content which the reporter considers “illegal”. His reportthen still is a DSA-notice, though the platforms might erroneously think they areallowed to treat it as mere ToS-flag, but this expectation is not legitimate. Think ofthe following example: A reporter does, at Segregation-stage, find and click “Reportillegal content”. He then is scared by the unjustified requests for name, explanation,and jurisdiction. Discouraged, he clicks back to Segregation-stage and there clicks“Hate and harassment”, which TikTok then will handle as a mere ToS-flag. Would anobservant third party necessarily interpret such reporting accordingly? I don’t thinkso!If one follows this reasoning, then platforms will—in vast amounts—erroneously treatDSA-notices as mere ToS-flags. E.g., platforms will very likely not include thesereports in their transparency reporting (Art. 15, 24 DSA), and they might not allowmandatory reviews of moderation decisions (Art. 20, 21 DSA). All these are follow-onmistakes infected by the platforms’ decision to one-sidedly steer reporters towardsToS-flags.Conclusion and Outlook: DSA-Proceedings?Through the design of their reporting flows, platforms are nudging users to submitweak ToS-notices, which leads platforms to count fewer (strong) DSA-notices fallingunder the regulatory oversight of the DSA. Such a design might be described as a“follow me to unregulated waters” – approach. In my view, this amounts to a violationof Art. 16(1) DSA. It also might lead to follow-on mistakes when DSA-notices areerroneously not treated as such.In this article, TikTok just served as an example. All major platforms, to somedegree, show similar shortcomings (Facebook, Instagram and X seem similar,- 7 -LinkedIn seems worse, YouTube and Pinterest do better). As a promising start,the Commission has opened proceedings against Meta regarding its reportingmechanisms. And we might hope that the Commission will look into the aspectsdescribed here. But competent Digital Services Coordinators should also startinvestigating other platforms (all platforms mentioned have their seat in Ireland,putting Coimisiún na Meán in charge).- 8 -

Follow Me to Unregulated Waters!

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Follow Me to Unregulated Waters!

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