Putting the Digital Services Act into Context: Bridging the Gap between EU Consumer Law and Platform Regulation

Abstract

The proposed Digital Services Act (DSA) aims to place more responsibility on online platform operators to control information published by users on their websites. That is a welcome development in the light of scandals concerning fake news and the surreptitious influencing of voters through social media platforms. Cambridge Analytica was suspected of influencing the U.S. presidential elections and the Brexit referendum in 2016 through information posted on Facebook. Also, online marketplaces such as Amazon and Airbnb would be required to verify the identity of professional users on their platforms. This could significantly improve the quality of online platforms for users. Despite its selling points, however, the DSA proposal leaves a number of issues untouched. From a consumer law perspective, the proposal could have been more ambitious in particular with regard to effective remedies for misleading information or unsafe products. Instead, the spirit and approach advocated by the proposal seem focused on balancing the dissemination of ‘fake news’ and hate speech with the fundamental right of free speech. The regulation of online marketplaces and of debates in the public sphere are however two very different issues. It would perhaps have been better to regulate them separately, rather than to present a DSA proposal that is aimed at all types of platforms. As it is, we find that the proposal pays too little heed to the needs of economic actors, in particular consumers and small traders, in the platform economy. Should the proposal have gone further? In this short contribution, we discuss a number of points that we find are missing from the proposal or not sufficiently addressed. They are: the position of the DSA in relation to existing EU law (Part 2), the regulation of platform liability for unsafe products (Part 3), the protection of economic rights of platform users in particular in the light of consumer protection under the Unfair Commercial Practices Directive (UCPD) (Part 4), and the relation of the DSA to the protection of small traders on online platforms, in particular in the light of the EU’s 2019 platform-to-business (P2B) Regulation (Part 5).