The first batch of reports assessing the so called “systemic risks” posed by the largest online platforms are in. These reports are a result of the Digital Services Act (DSA), Europe’s new law regulating platforms like Google, Meta, Amazon or X, and have been eagerly awaited by civil society groups across the globe. In their reports, companies are supposed to assess whether their services contribute to a wide range of barely defined risks. These go beyond the dissemination of illegal content and include vaguely defined categories such as negative effects on the integrity of elections, impediments to the exercise of fundamental rights or undermining of civic discourse. We have previously warned that the subjectivity of these categories invites a politization of the DSA.
In view of a new DSA investigation into TikTok’s potential role in Romania’s presidential election, we take a look at the reports and the framework that has produced them to understand their value and limitations.
A Short DSA Explainer
The DSA covers a lot of different services. It regulates online markets like Amazon or Shein, social networks like Instagram and TikTok, search engines like Google and Bing, and even app stores like those run by Apple and Google. Different obligations apply to different services, depending on their type and size. Generally, the lower the degree of control a service provider has over content shared via its product, the fewer obligations it needs to comply with.
For example, hosting services like cloud computing must provide points of contact for government authorities and users and basic transparency reporting. Online platforms, meaning any service that makes user generated content available to the public, must meet additional requirements like providing users with detailed information about content moderation decisions and the right to appeal. They must also comply with additional transparency obligations.
While the DSA is a necessary update to the EU’s liability rules and improved users’ rights, we have plenty of concerns with the route that it takes:
- We worry about the powers it gives to authorities to request user data and the obligation on providers to proactively share user data with law enforcement.
- We are also concerned about the ways in which trusted flaggers could lead to the over-removal of speech, and
- We caution against the misuse of the DSA’s mechanism to deal with emergencies like a pandemic.
Introducing Systemic Risks
The most stringent DSA obligations apply to large online platforms and search engines that have more than 45 million users in the EU. The European Commission has so far designated more than 20 services to constitute such “very large online platforms” (VLOPs) or “very large online search engines” (VLOSEs). These companies, which include X, TikTok, Amazon, Google Search, Maps and Play, YouTube and several porn platforms, must proactively assess and mitigate “systemic risks” related to the design, operation and use of their services. The DSA’s non-conclusive list of risks includes four broad categories: 1) the dissemination of illegal content, 2) negative effects on the exercise of fundamental rights, 3) threats to elections, civic discourse and public safety, and 4) negative effects and consequences in relation to gender-based violence, protection of minors and public health, and on a person’s physical and mental wellbeing.
The DSA does not provide much guidance on how VLOPs and VLOSEs are supposed to analyze whether they contribute to the somewhat arbitrary seeming list of risks mentioned. Nor does the law offer clear definitions of how these risks should be understood, leading to concerns that they could be interpreted widely and lead to the extensive removal of lawful but awful content. There is equally little guidance on risk mitigation as the DSA merely names a few measures that platforms can choose to employ. Some of these recommendations are incredibly broad, such as adapting the design, features or functioning of a service, or “reinforcing internal processes”. Others, like introducing age verification measures, are much more specific but come with a host of issues and can undermine fundamental rights themselves.
Risk Management Through the Lens of the Romanian Election
Per the DSA, platforms must annually publish reports detailing how they have analyzed and managed risks. These reports are complemented by separate reports compiled by external auditors, tasked with assessing platforms’ compliance with their obligations to manage risks and other obligations put forward by the DSA.
To better understand the merits and limitations of these reports, let’s examine the example of the recent Romanian election. In late November 2024, an ultranationalist and pro-Russian candidate, Calin Georgescu, unexpectedly won the first round of Romania’s presidential election. After reports by local civil society groups accusing TikTok of amplifying pro-Georgescu content, and a declassified brief published by Romania’s intelligence services that alleges cyberattacks and influence operations, the Romanian constitutional court annulled the results of the election. Shortly after, the European Commission opened formal proceedings against TikTok for insufficiently managing systemic risks related to the integrity of the Romanian election. Specifically, the Commission’s investigation focuses on “TikTok’s recommender systems, notably the risks linked to the coordinated inauthentic manipulation or automated exploitation of the service and TikTok’s policies on political advertisements and paid-for political content.”
TikTok’s own risk assessment report dedicates eight pages to potential negative effects on elections and civic discourse. Curiously, TikTok’s definition of this particular category of risk focuses on the spread of election misinformation but makes no mention of coordinated inauthentic behavior or the manipulation of its recommender systems. This illustrates the wide margin on platforms to define systemic risks and implement their own mitigation strategies. Leaving it up to platforms to define relevant risks not only makes the comparison of approaches taken by different companies impossible, it can also lead to overly broad or narrow approaches—potentially undermining fundamental rights or running counter to the obligation to effectively deal with risks, as in this example. It should also be noted that mis- and disinformation are terms not defined by international human rights law and are therefore not well suited as a robust basis on which freedom of expression may be restricted.
In its report, TikTok describes the measures taken to mitigate potential risks to elections and civic discourse. This overview broadly describes some election-specific interventions like labels for content that has not been fact checked but might contain misinformation, and describes TikTok’s policies like its ban of political ads, which is notoriously easy to circumvent. It does not entail any indication that the robustness and utility of the measures employed are documented or have been tested, nor any benchmarks of when TikTok considers a risk successfully mitigated. It does not, for example, contain figures on how many pieces of content receive certain labels, and how these influence users’ interactions with the content in question.
Similarly, the report does not contain any data regarding the efficacy of TikTok’s enforcement of its political ads ban. TikTok’s “methodology” for risk assessments, also included in the report, does not help in answering any of these questions, either. And looking at the report compiled by the external auditor, in this case KPMG, we are once again left disappointed: KPMG concluded that it was impossible to assess TikTok’s systemic risk compliance because of two earlier, pending investigations by the European Commission due to potential non-compliance with the systemic risk mitigation obligations.
Limitations of the DSA’s Risk Governance Approach
What then, is the value of the risk and audit reports, published roughly a year after their finalization? The answer may be very little.
As explained above, companies have a lot of flexibility in how to assess and deal with risks. On the one hand, some degree of flexibility is necessary: every VLOP and VLOSE differs significantly in terms of product logics, policies, user base and design choices. On the other hand, the high degree of flexibility in determining what exactly a systemic risk is can lead to significant inconsistencies and render risk analysis unreliable. It also allows regulators to put forward their own definitions, thereby potentially expanding risk categories as they see fit to deal with emerging or politically salient issues.
Rather than making sense of diverse and possibly conflicting definitions of risks, companies and regulators should put forward joint benchmarks, and include civil society experts in the process.
Speaking of benchmarks: There is a critical lack of standardized processes, assessment methodologies and reporting templates. Most assessment reports contain very little information on how the actual assessments are carried out, and the auditors’ reports distinguish themselves through an almost complete lack of insight into the auditing process itself. This information is crucial, but it is near impossible to adequately scrutinize the reports themselves without understanding whether auditors were provided the necessary information, whether they ran into any roadblocks looking at specific issues, and how evidence was produced and documented. And without methodologies that are applicable across the board it will remain very challenging, if not impossible, to compare approaches taken by different companies.
The TikTok example shows that the risk and audit reports do not contain the “smoking gun” some might have hoped for. Besides the shortcomings explained above, this is due to the inherent limitations of the DSA itself. Although the DSA attempts to take a holistic approach to complex societal risks that cut across different but interconnected challenges, its reporting system is forced to only consider the obligations put forward by the DSA itself. Any legal assessment framework will struggle to capture complex societal challenges like the integrity of elections or public safety. In addition, phenomena as complex as electoral processes and civic discourse are shaped by a range of different legal instruments, including European rules on political ads, data protection, cybersecurity and media pluralism, not to mention countless national laws. Expecting a definitive answer on the potential implications of large online services on complex societal processes from a risk report will therefore always fall short.
The Way Forward
The reports do present a slight improvement in terms of companies’ accountability and transparency. Even if the reports may not include the hard evidence of non-compliance some might have expected, they are a starting point to understanding how platforms attempt to grapple with complex issues taking place on their services. As such, they are, at best, the basis for an iterative approach to compliance. But many of the risks described by the DSA as systemic and their relationships with online services are still poorly understood.
Instead of relying on platforms or regulators to define how risks should be conceptualized and mitigated, a joint approach is needed—one that builds on expertise by civil society, academics and activists, and emphasizes best practices. A collaborative approach would help make sense of these complex challenges and how they can be addressed in ways that strengthen users’ rights and protect fundamental rights.
This post was originally published on here
