How Will the Digital Services Act (DSA) Affect the European Internet?

July 12, 2023 · by · in Content Regulation, Derivative Liability

I expect the Digital Services Act (DSA) to be one of the most consequential regulations of the Internet. Yet, I have so far avoided blogging the DSA because it’s so overwhelming and complex. Its breathtaking/mind-numbing scope and detail reminds me of the Princess Bride book’s self-description: “Fencing. Fighting. Torture. Revenge. Giants. Monsters. Chases. Escapes. True love. Miracles.” (Trying to read the DSA also brings to mind the Princess Bride line: “to the pain”).

At a recent IViR workshop on the DSA, one of my respected U.S. law professor colleagues said that the DSA isn’t teachable in a US law school class. That was validating because I didn’t teach the DSA in Internet Law last semester and cannot figure out how to tackle it without it swallowing up most of the semester. If you have any short teaching modules on the DSA that you’d be willing to share, please email me so I can learn from you.

For the same reasons of complexity/detail/scope, the DSA is not really bloggable either. Hence my silence about it here.

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At the workshop, I hypothesized some operational consequences of the DSA:

  • The DSA will cause services to homogenize. Services will adopt practices that are more similar to each other as they all gravitate towards regulator-blessed practices.
  • The DSA will cause services’ practices to ossify, especially with respect to content moderation. Services will become increasingly reluctant to experiment with new practices or deviate from regulator-blessed practices.
  • Services will take as many half-measure steps to comply with the DSA as the regulators allow.
  • The DSA’s provisions will look increasingly outdated/antiquated over time. Like many laws, the DSA responds to the current concerns instead of anticipating the future ones. (This isn’t unique to the DSA–regulators are notoriously terrible as prognosticators–but it’s a major flaw for a comprehensive and instrumentalist regulation).
  • The DSA will promote competitive gaming and weaponization of its provisions. The digital due process provisions, intended to benefit consumers, will also reward gamers and malefactors even though the DSA tried to anticipate some of the threat vectors.
  • Services’ operational costs will increase due to the DSA. These cost increases favor big incumbent services who can bear those costs instead of smaller services and new entrants.
  • By jacking up the regulatory costs associated with UGC, the DSA will prompt services to drop UGC entirely or replace it with licensed professionally produced content which appears cheaper by comparison (I first described this dynamic here).
  • Accordingly, the DSA should result in a small number of larger UGC players dominating the European market and many other services exiting the UGC industry entirely.

As you can tell, I think the DSA accelerates the end of the Internet’s Web 2.0 era. Check back here in a few years to see what I got right and what I missed.