Holznagel, Daniel

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The Digital Services Act wants youto “sue” Facebook over contentdecisions in private de facto courtsDaniel Holznagel 2021-06-24T11:59:10According to Art. 21 of the Commission’s draft for a Digital Services Act (DSA),Member States shall certify out-of-court dispute settlement bodies which might – atthe request of online platform users – review platform decisions, e.g., content take-downs or account suspensions. Online platforms, including Facebook, are bound bysuch decisions.While Art. 21 DSA seeks to address a legitimate policy concern, namely the needto enable effective recourse mechanisms for platform decisions, its introduction ofquasi-courts is incompatible with European Law. Moreover, Art. 21 DSA is groundedin the unsound assumption that private dispute settlement bodies can be both cost-effective, high-quality, and independent.But Art. 21 is tied to an underlying, more general question: For recourse againstonline platform decisions, do we want private entities like the NetzDG-self-regulatorybodies or the Facebook Oversight Board to be our future decision-makers? Howdoes this comply with our understanding of the Rule of Law? I argue that, insteadof increasingly relying on self-regulation, strengthening the existing Member States‘courts is a simpler, more effective and better solution.However, this discussion needs to take place now, as the EU is rushing forwardwith the DSA, a legislative mega-project that the Commission wants to become asuccess. While some Member States are raising concerns, the European Parliamentmight not attempt to add substantial repairs to Art. 21 DSA.Background: The Risk of OverblockingEveryday, online intermediaries must make decisions about the legality of theirusers’ activities. In other words, platforms need to figure out whether a certain pieceof content is in line with national laws or the platform’s Terms of Services, beforeimplementing a take-down or an account suspension. Platform transparency reportsevidence that such decisions are increasingly taken on the platforms’ own initiative,after content has been found using automated means. To a lesser but nonethelesssubstantial extent, platform action results from third party take-down requests. Suchdecisions are not always justified, for example, when there is no sound legal basisfor a take-down. Given the vast amount of such decisions (see, for example, atFacebook), the limited resources the companies spend on a single case, and thecomplexities that might arise, mistakes and overblocking might occur.- 1 -Legislative responsibility to provide safeguards andrecourseTo a certain degree, the risk of over-blocking must be accepted as a side effect thatcomes with every form of rights enforcement (we don’t abolish Criminal Law, thoughwe know that in some cases, innocent individuals are sent to jail). However, giventheir size, the importance that online platforms have for our citizens and economies,and considering the free speech issues at stake, legislators need to implementsafeguards to minimize overblocking. Moreover, effective recourse mechanismsmust be accessible, so users can effectively contest decisions and compel platformsto restore content or accounts after erroneous decisions (so called ‘put-back’).At the practical level, there are different pathways that might lead to recourse orreinstatement:In-house appeals mechanismsInterestingly, all major platforms have introduced voluntary (in-house) appealsmechanisms where users can appeal content decisions, requesting the platformto review a decision. These proceedings are cost-free. A considerable number ofappeals are reported as successful, leading to the restoration of content. Facebookreports about 84.000 content decisions on the grounds of hate speech alonethat were successfully appealed in Q1/2021. However, it is still the platformsthemselves that decide the appeals, no external body is consulted, althoughlegislators have started to introduce some minimum quality standards for in-houseappeals mechanisms (for example, in Germany by introducing § 3b NetzDG in2021).External self-regulatory bodies (for example, the Facebook Oversight Board)To date, two prominent self-regulatory bodies have been established on platforms’content decisions. Under the NetzDG, social networks can refer controversialdecisions to a self-regulatory body. One such body, financed by Facebook andYouTube, has begun its work. In addition, Facebook established its Oversight Board,without any legislative underpinning. These self-regulatory bodies do not contributeto strengthening users rights, though, because it is generally only the platforms,not the users, who can refer cases to these bodies. The Facebook Oversight Boardclaims to accept appeals by users, but it is highly unlikely that appeals by everyday-users might ever be selected in relevant numbers (the Board selects eligible casesthat are difficult, significant and globally relevant that can inform future policy).Platforms themselves are likely to select cases to avoid or abate controversy (forexample the Trump ban), not to enable independent or just review for their users.Especially considering the costs of these bodies, it is unlikely that the platforms willopen self-regulation to general user-appeals.Member State Courts- 2 -And then we have the courts. Unlike in the U.S., under European Law, users cansuccessfully sue platforms for reinstatement of content or restoration of accountsafter overblocking. In Germany, there have been a large number of such cases,with even the German Constitutional Court issuing a preliminary injunction requiringFacebook to restore an account. Courts often grant (speedy) preliminary measures,and the financial risks of such proceedings are comparably modest (between 3.000– 5.000 Euros), but might still be too high for many everyday users. Moreover, somebig platforms order their counsel to raise every argument and move aggressively,possibly in an attempt to scare users away from court.Art. 21 introduces “quasi-courts” incompatible withEuropean LawArt. 21 DSA would add another layer of dispute settlement: self-regulatory bodiesto which users can appeal to after platform decisions, delivering (partly) bindingdecisions. Thus, Art. 21 attempts to establish external private bodies that shall haveall the essential characteristics of courts. According to the Explanatory Memorandumof the DSA, online-platforms “shall engage […] with the [dispute settlement] body.”This means users can lawfully force platforms to the forum. Additionally, onlineplatforms “shall be bound by the decision taken by the body”. Since Art. 21 andrecital 44 only mention that recipients of services shall have the rights to redressagainst the decision before a court, it must be concluded that online platforms shallnot have such a right.Stripped down, these characteristics (binding decisions from a decision-maker thatone party did not consent to) describe the features of a court or what – traditionally– only courts can do. At least from the platforms’ perspective, the dispute settlementbodies would be de facto courts.The European Union has no competence to introduce a new layer of de facto courtsat Member State level. It is well-established that the Treaty on the Functioning ofthe European Union does not yield any competence to do so. Art. 4(2)(j) of theTreaty on the Functioning of the European Union (TFEU) mentions “justice” as ashared competence, but this is understood to back subject matters such as judicialcooperation, as mentioned in Art. 81 of the TFEU.Of course, one could argue that Art. 21 dispute settlement bodies are not “real”courts in the meaning of European Law and do not need to meet its standards. IfArt. 21 were to interpreted in that way, Art. 21 would be incompatible with otherfundamental European laws guaranteeing access to justice. Since platforms shallhave no right to contest Art. 21 – decisions before a (real) court, Art. 21 would violatethe platforms’ fundamental right of access to justice, which is guaranteed by Art.47(2) of The Charter of Fundamental Rights of the European Union and Art. 6 of theEuropean Convention on Human Rights.- 3 -Art. 21 is unrealistic and unnecessaryLeaving legal concerns aside, Art. 21 DSA is unrealistic in its objective to establishout-of-court tribunals that are bestowed with all the qualities of a court, but wouldstill somehow be more effective and less costly. This is a bold and unrealistic dream:decisions based upon impartial expertise and procedural safeguards are not onlyhard to design (the very reason for the existence of public, independent courts) butextremely costly.This is illustrated by the NetzDG self-regulatory bodies, which are about as costly assmall court cases. Another example is the Facebook Oversight Board (which is verylikely much more costly than respective court proceedings). Remember: platformstake part in these self-regulatory procedures voluntarily. If users start draggingplatforms into contradictory Art. 21 out-of-court proceedings against their will, expectthat the platforms’ counsel would find adequate means to burden plaintiffs by makingproceedings as complicated as possible. A good example is what some platformsreportedly do now in the (real) courts, when they try to make it very hard even in theclearest of cases.A Better Path Forward: strengthen litigation in the(real) courtsIdeally, Member States‘ courts should already possess some of the necessarycharacteristics for dispute settlement in our context – expertise, impartiality, fair rulesof procedure, and the capacity to deliver binding decisions. What may be lackingis speediness and cost-effectiveness. Reform efforts should focus on solving thesespecific weaknesses, which is less difficult than inventing and implementing a wholenew layer of de facto courts from scratch.There are at least three measures that can be taken to ensure speedier and morecost-effective court proceedings:Expand Art. 11 DSA (Legal Representatives)Legal proceedings get complicated and slow in cross-border matters. Thanks toexisting European law (Art. 7 Brussels Ia – Regulation (EU) No 1215/2012), usersare allowed to sue platforms over content decisions in the courts of their country ofresidence. For example, a German user can sue Facebook in a German court overan account suspension. However, it would still be necessary to serve documents.When platforms are established within the Union, European law already makesthis comparably easy because Art. 14 of Regulation (EC) No 1393/2007 allowscross-border service by postal services. However, serving documents outside theUnion can slow down proceedings extraordinarily. Therefore, at least for onlineplatforms, Art. 11 should be expanded so future legal representatives of third-countryonline platforms must mandate their local legal representatives to receive serviceof process in civil proceedings, regarding decisions to take-down content or tosuspend accounts (as mentioned in Art. 17(1) DSA). To strengthen effective rights- 4 -enforcement, these legal representatives will also need to accept services whenthird parties require platforms to take action against users (for example to take downcontent).Preliminary injunctions as a standard measureCourt proceedings are generally slow but can be expedited through interimproceedings. In some areas of law, especially when dealing with intellectualproperty infringements, such speedy proceedings have become the rule ratherthan the exception. Such expedited proceedings have long since been supportedthrough legislative underpinning in European (see, for example, Art. 3(1) and Art.11 sentence 3 of Enforcement-Directive (2004/48/EC) and national law (see, forexample, § 101(7) German Copyright Act). Given the importance of very largeplatforms and how much people depend on them, the same should be true for users’disputes with “their” platforms.Capping the costsFinancial risks are a legitimate concern when users sue their platforms overcontent decisions or account suspensions, and costs should be reduced. There areexamples for this: our legal regimes cap the costs and the financial risks of courtproceedings for public policy reasons, for example in rental law and labor law, oreven in non-commercial copyright infringement cases (see, for example, § 97a(3)German Copyright Act). Given the role of online platforms, where we “live”, “work”and “speak”, it is reasonable to cap the costs for court proceedings over content oraccount decisions between users and platforms.Taken together, the proposals would strengthen litigation in courts. Of course,this would automatically pressure the platforms to take their in-house appealsmechanisms more seriously – a win-win situation. We would enable cost-effectivecourt proceedings which would incentivize effective in-house appeals mechanisms(which are cost-free).The basic rationale of Art. 21 DSA might remain intact. Member States might certifyout-of-court bodies for dispute settlement. But taking part in these proceedingsshould be voluntary.This article was updated to reflect the revised numbering of articles in the DigitalServices Act; Article 21 used to be Article 18.- 5 -

The Digital Services Act wants you to “sue” Facebook over content decisions in private de facto courts

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The Digital Services Act wants you to “sue” Facebook over content decisions in private de facto courts

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