TILT seminar: João Pedro Quintais, Ronan Fahy and Naomi Appelman
Using Terms and Conditions to apply Fundamental Rights to Content Moderation: Is Article 12 DSA a Paper Tiger?
Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform's terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalised groups. Indeed, these content moderation systems have been criticised for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organisations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs.
Under EU law, other than pursuant to a provision in the Terrorist Content Regulation, platforms presently have no obligation to incorporate fundamental rights into their T&Cs. However, the Digital Services Act (DSA) proposal may change this. Crucially, Article 12 DSA lays down new horizontal rules on how platforms can enforce their T&Cs, including a stipulation that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. The EU Council and Parliament have proposed different changes to the provision, currently under discussion in the trilogue negotiations. In this paper, we critically examine this topic under the prism of Article 12 DSA. Against the backdrop of a growing body of EU platform regulation instruments, we ask whether art. 12 DSA requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We further examine whether this type of application of fundamental rights in T&Cs will solve the most pressing issues at hand and contribute to reigning in the power of platforms, or whether it is mostly a paper tiger that further legitimizes the privatisation of fundamental rights balancing and enforcement.
Speakers: Dr. João Quintais (IViR), University of Amsterdam, Dr. Ronan Fahy (IViR), University of Amsterdam & Naomi Appelman (IViR), University of Amsterdam
João Pedro Quintais is Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam, where his research focuses on fundamental rights, the regulation of platforms and algorithmic content moderation. João is Co-Director of the Information Policy Lab and member of the Digital Services Act (DSA) Observatory, both at IViR. He is also a member of the European Copyright Society and Managing Editor of the Kluwer Copyright Blog. João’s current research projects include an H2020 project on copyright content moderation and an NWO (Dutch Research Council) VENI Grant on “Responsible Algorithms: How to Safeguard Freedom of Expression Online”.
Naomi Appelman is PhD researcher at the Institute for Information Law (IViR) as part of the Digital Transformation of Decision-Making (DTDM) research initiative and a visiting researcher at the HIIG focussing on online speech regulation and platform governance. Her interdisciplinary PhD research combines information law with political philosophy and asks how EU platform regulation should facilitate the contestability of the automated content moderation systems governing online speech. Further information and list of publications available at:
Ronan Fahy is a Senior Researcher at the Institute for Information Law (IViR), University of Amsterdam, where his research focuses on freedom of expression and platform regulation. He is a member of the Digital Transformation of Decision-Making (DTDM) research initiative at the Amsterdam Law School, examining the normative implications of the shift toward automated decision-making, and the effect on democratic values and fundamental rights. Ronan is also member of the Digital Services Act (DSA) Observatory at IViR. Further information and list of publications available at:
Moderator: dr. Sunimal Mendis
Time: 14:30 – 16:00 hrs
*Attendance is free. To register for this event please contact: Maartje van Genk