The organizations argue that without strict impartiality and due process, the system could lead to the over-removal of lawful speech and grant government authorities disproportionate influence over online content.
The Digital Services Act establishes a framework for regulating online intermediaries in the EU. A core component of this law is the “trusted flagger” system, which allows entities with proven expertise in identifying illegal content to submit notices that platforms must prioritize. While the Commission intends these guidelines to provide practical operational guidance, EFF and ARTICLE 19 warn that poor implementation could undermine the rule of law.
The joint submission emphasizes that the DSA does not provide a definition of “illegal content.” Instead, the determination of legality must rely on the specific national or EU laws applicable to the content in question. The advocacy groups maintain that platforms must remain responsible for assessing whether a flagged piece of content is actually illegal and should not treat a trusted flagger’s notice as a definitive mandate for removal.
Preventing Law Enforcement from Holding Trusted Flagger Status
A primary concern raised by EFF and ARTICLE 19 is the potential for law enforcement authorities to be granted trusted flagger status. According to the joint submission, law enforcement authorities already possess statutory powers under Article 9 of the DSA.
The organizations argue that combining these existing powers with the trusted flagger mechanism creates a risk. If law enforcement authorities act as trusted flaggers, platforms might perceive these notices as de facto removal orders. This, the groups claim, would undermine due process and the rule of law.
Risks of Cross-Border Content Assessments
The submission highlights the complexity of applying the trusted flagger system across the different legal jurisdictions of EU Member States. Because national legal frameworks may differ, the groups warn that platforms should not rely on a trusted flagger notice to assess legality across Member States.
EFF and ARTICLE 19 assert that guidelines must caution platforms against applying a “one-size-fits-all” approach to moderation. They argue that platforms should not rely on a trusted flagger notice to assess legality across Member States.
Expanding Systemic Risk Beyond Moderation
The joint submission argues that the European Commission’s guidelines should not let systemic risk assessments rely too heavily on individual content moderation decisions.
Instead, the organizations push for a broader focus on platform design. This includes considering broader platform design choices, including recommender systems. By focusing on the architecture of the platform rather than just individual moderation decisions, the groups argue that the EU can more effectively address systemic risks.
Protecting Civil Society and Existing Partnerships
EFF and ARTICLE 19 emphasize that civil society organizations are critical for reporting human rights abuses and identifying illegal content. However, they note that these organizations may face retaliation for their work and should be protected from abusive campaigns that threaten their independence. The submission calls for the guidelines to include explicit protections for these entities to ensure they can operate without fear of harassment.
Furthermore, the groups argue that the trusted flagger mechanism should complement, rather than replace, existing trusted partnership programs. They express concern that the mechanism should not sideline existing trusted partnership programs, including collaborations with civil society organizations that do not or cannot hold trusted flagger status, especially those outside of the EU with valuable regional expertise.
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