The publication of the Digital Services Act by the EU will be a first step in providing a legal environment for tech companies. But Internet regulation must not create any unintended consequences for the way we communicate online.
The Internet could reasonably claim to be the global endurance champion of 2020. Not only did it manage to remain resilient and stay operational during one of the worst pandemics in modern history, but it also allowed societies to continue functioning. In fact, one could say the Internet was ready for COVID-19; governments, for the most part, were not.
The Internet’s enduring value is a fact that has been repeatedly acknowledged by European legislators, even as they set out their rationale for the Digital Services Act and the Digital Markets Act, new legislation that commissioners are comparing to "traffic rules" designed to regulate content and business online.
Internet regulation has been at the top of every government’s policy agenda; from the United States to Europe to Africa and the Asia Pacific. The Internet has been integrated so much in the political machinery that regulation is now an inevitability.
Only last week, the president of the United States, Donald Trump, tweeted that he would veto the National Defense Authorization Act - a significant piece of American legislation related to military funds - unless Section 230 of the Communications Decency Act, the law that shields Internet service providers from legal liability for content posted online, is repealed.
In the meantime, France is working towards tougher rules for social media companies both domestically and at a European level in light of the terrorist attack on a schoolteacher in November. And, the UK’s prime minister, Boris Johnson, recently committed to fighting "disinformation" via "Online Harms" legislation, which is expected to be ready in early 2021.
The concerns are, for the most part, legitimate: disinformation has pushed democracies close to a breaking point and, in some ways, it could determine the success or failure of the COVID-19 vaccine. A renewed conversation around competition is long overdue as is the question of whether some of the existing legal rules are enough to address monopolies and market concentration online. Finding a balance between security and safety needs fast resolution. Regulation promises to fix all this.
But as clear as it is that something must be done to address all these current challenges, it is equally clear that it must be done in a way that is fit for purpose for the Internet and the digital age.
A recent global survey conducted by YouGov on behalf of the Internet Society has shown that over two-thirds of people (67 per cent) are not confident that politicians have a good enough understanding of how the Internet works to create laws to regulate it.
That this legitimate concern exists does not mean that regulation should not happen. But it does indicate that regulation cannot go ahead on a basis of sensationalist arguments or unfit tools.
Too often Internet regulation is presented as a panacea for all ills; from abusive language to online fraud.
But the Internet is an ecosystem and, just like any ecosystem, it is diverse, complex and dynamic. It is based on some fundamental design principles that have underpinned the Internet since its original inception. Regulation must uphold these principles and ensure that it does not create any unintended consequences for the way we communicate online.
For its part, the Internet Society has created the Internet Impact Assessment Toolkit that we believe will help legislators create laws without causing damage to the ecosystem.
The Digital Services Act may or may not contain elements that could harm the Internet; we will need to read the fine print. What we know is that the DSA promises to do for competition and intermediaries what the GDPR did for privacy: set rules that would then establish a global standard for platform regulation. It is expected to affect businesses around the world and require some drastic changes in their business models. This could also affect the Internet’s underlying architecture.
How will the new rules be enforced? And what measures companies will be required to take will be key in determining the levels of participation and compliance.
If there is one lesson to be learned from the GDPR, it is how a lack of clarity and compliance costs can complicate and make implementation hard. The EU has admitted as much. Bearing this in mind is crucial as companies will start deploying tools to comply with the rules of the DSA. We should remain conscious as to how such tools may be created, who by and how effective they ultimately can be.
Consider, for instance, the use of algorithmic tools for content moderation, which was a policy objective of last year’s copyright directive and has since then been implemented for other forms of illegal content. The DSA will require some form of content moderation on behalf of platforms. Algorithmic tools pose challenges, including, but not limited to, how they can negatively affect the Internet as an open, interoperable, and general-purpose network.
Users could potentially be denied access to content that is needed for educational or research purposes. Automated filters have been responsible for taking down perfectly legitimate content that relates to war crimes or even legitimate speech. This could affect innovation and creativity, which is one of the main objectives the DSA aims to accomplish.
The DSA has set the bar very high for itself. When it is released, it will become the first official attempt to articulate a legal environment for technology companies. But, the question of how well it manages to account for the Internet persists. It will be essential for the DSA to conduct an impact assessment analysis for the Internet as soon as the implementation phase kicks in.
The Internet has held up and helped society get through a traumatic period. We owe it respect for its extraordinary service.
- Konstantinos Komaitis is the Senior Director of Policy Strategy and Development at the Internet Society
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