For years, anyone who flagged unlawful content to a large platform felt they were talking to a wall: no reply, or an automatic reply with no explanation, and no way to challenge it. The European regulation on digital services, Regulation (EU) 2022/2065 known as the Digital Services Act or DSA, has significantly changed this relationship. It does not oblige platforms to remove everything that is flagged, but it lays down precise rules on how notices must be received, examined and decided. Knowing them lets you assert your rights more effectively.
Who it applies to
The DSA covers services that host user content and make it accessible in the European Union: social networks, video platforms, marketplaces, review sites, hosting services. Obligations increase with the size of the service: very large online platforms and search engines have additional duties, for example on risk assessment and transparency.
An important point: the DSA deals with illegal content, meaning content contrary to EU law or the law of a member state. Breaches of a platform's internal rules alone, such as community standards, are handled under that platform's rules, although the DSA requires those rules to be clear and applied diligently.
The notice mechanism
Hosting providers must provide an easy-to-use mechanism for flagging content believed to be illegal. For the notice to be complete, it is worth including:
- an explanation of why you consider the content illegal;
- the exact address of the content, or addresses if there are several;
- your name and an email address, except in certain cases involving particularly serious offences;
- a statement of good faith about the accuracy and completeness of the information provided.
A sufficiently precise notice matters for another reason too: it can mean the platform is deemed to be aware of the unlawful content, with consequences for its liability if it fails to act.
The decision must be reasoned
This is one of the most useful changes for those who flag content. The platform must inform you of the decision taken on your notice and of the available means of redress. When it removes or restricts content, it must give the affected user a clear statement of reasons, indicating among other things whether the decision is based on the law or on its terms of service.
In practice, a rejection with no explanation at all is less and less acceptable, and the reasons you receive help you understand whether your notice was incomplete or the category you chose was wrong.
The internal complaint
Online platforms must offer an internal complaint-handling system, available for a certain period after the decision. You can use it if your notice was rejected and you believe the decision is wrong. Complaints must be handled in a timely, diligent and non-arbitrary manner, and the final decision cannot be taken solely by automated means.
When you file a complaint:
- refer to the number or reference of the original notice;
- explain why the decision is wrong, adding the elements that may have been missing;
- attach documents if they help prove that a statement is false or confirm your identity.
Out-of-court dispute settlement
If even the internal complaint does not lead to a satisfactory result, the DSA provides for the option of turning to out-of-court dispute settlement bodies certified by national authorities. They do not replace the courts, which always remain available, but they offer an intermediate route, generally faster and cheaper than a lawsuit.
Trusted flaggers
The DSA also introduces trusted flaggers: organisations with specific expertise, recognised by national authorities, whose notices must be handled as a priority. For a private individual it can be useful to know they exist, because some of these organisations work on issues such as online hate or child protection and can offer support.
Whom to turn to if the rules are not followed
Each member state has a Digital Services Coordinator, the authority responsible for supervising the application of the DSA; in Italy this role is assigned to the communications regulator, the Autorità per le garanzie nelle comunicazioni. Users can lodge a complaint against a provider they believe is breaching the regulation. For very large platforms, supervision is shared with the European Commission.
What the DSA does not do
It helps to have realistic expectations:
| The DSA guarantees | The DSA does not guarantee |
|---|---|
| A channel for flagging | Removal of every flagged item |
| A reasoned decision | That the decision goes your way |
| An internal complaint | Identical response times in every case |
| Access to out-of-court bodies | A substitute for the courts |
In short
- The DSA sets out how platforms must receive, examine and decide notices of illegal content.
- A complete notice includes an explanation, exact addresses, name, email and a good-faith statement.
- You are entitled to know the decision and the available means of redress.
- Against a rejection you can use the internal complaint system and then out-of-court settlement.
- In Italy, the communications regulator supervises the application of the DSA.