The Digital Services Act (DSA) is aiming at making the internet safer. Amongst others, 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 a few weeks ago, the European Commission opened proceedings against Meta concerning, amongst others, its reporting mechanisms. Obviously, the Commission is suspecting infringements by Meta in this field—though no details have been published as of today.

In this article, I will demonstrate how some major platforms are failing to properly implement the DSA’s rules on notice and action mechanisms. In my view, many platforms are unduly nudging potential notice-senders (hereinafter: reporters) to submit weak, largely unregulated Community Standards flags. At the same time, platforms are deterring users from submitting (strong) notices regulated under the DSA.

For illustration, TikTok will serve as an example. [...]

The findings in this article are based on a collaboration with the Human Rights Organization HateAid, which has launched broad investigations into reporting mechanisms of all major platforms. [...]

Not only does such a platform design lead to a violation of Art. 16(1) DSA (reporting mechanisms not “easy to access and user-friendly”). In my view, it also leads to follow-on mistakes: As we have seen, platforms are nudging reporters to submit “weak” ToS-flags instead of “strong” DSA-notices. However, this only determines de-facto treatment of notices: From the platforms’ perspectives, reports will mostly belong in the bucket of mere “unregulated” ToS-flags. But how platforms categorize a given report does not ultimately determine the true legal nature of that report. [...]

Conclusion and Outlook: DSA-Proceedings?

Through the design of their reporting flows, platforms are nudging users to submit weak ToS-notices, which leads platforms to count fewer (strong) DSA-notices falling under 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 violation of Art. 16(1) DSA. It also might lead to follow-on mistakes when DSA-notices are erroneously not treated as such. [...]