Comment: Enhanced legal protection under Article 21 of the Digital Services Act?
* Published as part of the 2023 CoI Conference: 'Towards just institutional approaches to conflict prevention and resolution' *
Article 21 of the Digital Services Act introduces a new form of conflict resolution: certified out-of-court dispute settlement bodies that can settle disputes between individuals and online platforms. However, given the mechanisms already in place, the question is whether this new form of conflict resolution will provide an additional safeguard for individuals in the Netherlands.
Introduction
Online platforms offer a tool for people to express their opinions, post holiday pictures or share images of funny cats with a limited circle of friends or family or the entire world. Yet these online platforms may have a downside. People may express their opinions in such a way that there is ‘harmful content’, for example, Article 131c Criminal Code (group defamation) or Article 137d Criminal Code (incitement to hatred). At the same time, online platforms may, by mistake, take down perfectly legal content. Therefore, various safeguards have been created to protect fundamental rights, such as the right to an effective remedy or the principle of non-discrimination. The Digital Services Act (DSA) has given legal structure to some existing protection mechanisms but has also created new ones. A new protection mechanism can be found in Article 21 DSA. Article 21 allows European Union (EU) member states to certify out-of-court dispute settlement bodies to settle disputes between individuals and online platforms. However, the question is to what extent the legal protection of individuals will increase with this new form of dispute resolution between individuals and online platforms.
Certified out-of-court dispute settlement bodies
What if you, as a user of an online platform, do not agree with the decision of the service provider to take down your content? Under Article 21(1) DSA, individuals can submit their dispute to a certified out-of-court dispute settlement body. It does not matter for the submission of a request whether the individual has already filed a complaint with the online platform itself under Article 16 or 20 DSA. Out-of-court dispute settlement is also open to the person who flagged your content as illegal. Under the DSA, online platforms must inform their users of the possibility of filing complaints to an out-of-court dispute settlement body. Dispute settlement bodies may charge fees to individuals for handling complaints. These fees must be ‘reasonable, accessible, attractive, inexpensive and proportionate’. When the individual is vindicated, the online platform should reimburse the costs unless the individual’ manifestly acted in bad faith. Article 21 DSA thus promotes a form of Alternative Dispute Resolution (ADR). Individuals do not have to go to court but can easily refer their dispute to an out-of-court dispute settlement body.
Directive 2013/11/EU set the direction for ADR
Promoting ADR has been on the EU’s agenda for some time. Back in 2013, with the introduction of Directive 2013/11/EU (Directive on consumer ADR), the importance of ADR was, once again, endorsed and even legally embedded within the EU. Still, at the same time, concerns were raised about individuals not being familiar with the possibility of ADR and the differences in quality between different ADR providers. The Directive aims to address these issues by requiring ADR providers to meet the requirements of independence, integrity, and expertise. In addition, these ADR providers must be free or at least not exceed the nominal fee. Finally, individuals must be informed by the trader of the existence of ADR.
The ADR procedure in the DSA can thus be seen as complementary to Directive 2013/11/EU in the context of online platforms. Member States only certify out-of-court bodies if they meet the requirements of impartiality and independence and have expertise in illegal content or with the application and enforcement of terms and conditions of one or more types of online platforms. In addition, the ADR procedures must follow clear and fair rules of procedure that are easy and publicly accessible and comply with applicable law. As mentioned, costs should also comply with the requirements of proportionality, but the ADR Directive prefers free procedures.
The focus on ADR, alongside court proceedings, is to be encouraged due to the bodies’ expertise and the low cost and speed of the procedures. However, there is an essential caveat to the DSA – especially when compared to earlier drafts of the proposal.
Advice instead of decision
Unlike in the draft version of the DSA, the outcome of the out-of-court dispute settlement procedure is not binding. The Directive 2013/11/EU also addresses the binding force of ADR procedures. Under the Directive, states are not required to give binding force to ADR outcomes. However, unlike under the DSA, Member States may provide binding force to ADR outcomes. Also, the Directive allows member states to require traders to participate in ADR proceedings. The DSA clearly states that the Directive remains of ‘utmost importance’. However, the question is whether member states can give binding force to ADR outcomes under the DSA. In the Netherlands, we already have several forms of ADR. These forms share a commonality, namely that they operate on a voluntary basis. Both parties have to agree to this form of dispute resolution. Both arbitration and binding advice result in a binding document – a binding advice or an arbitral award. A binding advice can still be marginally reviewed by the court (if it violates the law, public order or good morals), but an arbitral award cannot. Dutch forms of ADR, thus, have a more substantial legal consequence than the Directive and the DSA. The question is, therefore, to what extent legal protection for individuals will increase. Individuals will still be forced to go to court with all the associated costs when the outcome of the ADR procedure is not binding. Instead of a cheap and efficient procedure, proceedings against the online platform will only be prolonged, which ADR is trying to prevent.
Reporting obligations for certified out-of-court dispute settlement bodies
The DSA is not just referring to settling disputes but also about reporting what disputes arise as input for (new) policy. Certified out-of-court dispute settlement bodies are required to provide a report every two years that includes how many cases they have settled, the outcome of proceedings, how long the turnaround time of proceedings was and what shortcomings they experienced. Based on this report, these bodies can outline best practices and make recommendations. However, this aspect, too, is not new. Directive 2013/11/EU already refers to the possibility of identifying systematic and significant problems and that recommendations can complement this reporting. In the Netherlands, dispute committees already make recommendations in addition to their annual reporting. An example is the Geschillen Commissie Woningcorporatie regio Midden-Brabant. In its publication ‘Balans en houdbaarheid alternatieve geschillenbeschlechting voor comsumentenzaken’, the Social and Economic Council also endorsed the importance of periodic reviews and called for such reporting to be made mandatory. In addition, the recommendations should be implemented.
The Oversight Board as a certified out-of-court dispute settlement body?
An existing mechanism already appears to largely meet the requirements of Article 21 DSA, namely Meta’s Oversight Board. The Oversight Board settles disputes between individuals and Meta’s platforms. The Oversight Board is a relatively unique body not found on other large well-known platforms, such as Twitter. The Oversight Board consists of experts who investigate cases independently and impartially, and in addition, they can make recommendations. Their decisions are binding. Currently, the Oversight Board is funded by Meta. However, there is a significant drawback to the Oversight Board considering legal protection. The Oversight Board, unlike the out-of-court dispute settlement bodies and the courts, can select their cases from disputes between individuals and Meta’s platforms, which means that not all complaints by individuals are assessed. It cannot be ruled out that the Oversight Board can maintain its expertise and speed (in principle, judgments are rendered within 90 days) by this selection mechanism. After all, if they are expected to handle all cases, this may result in cases being less carefully scrutinised by a 40-member team within 90 days. In addition, the Oversight Board seems to have a different angle than out-of-court dispute settlement bodies and the courts, namely a focus on monitoring and possibly changing Meta’s policies instead of providing legal protection to individuals.
A stronger position for individuals vis-à-vis online platforms?
It can be concluded that the legal protection of users of online platforms is unlikely to be enhanced by the introduction of certified out-of-court dispute settlement bodies. First, Directive 2013/11/EU already endorse ADR, and these bodies should have sufficient expertise, be inexpensive and have a short turnaround time. Second, judgments are not binding under both the Directive and the DSA. The Directive allows rulings to be declared binding, and various Dutch forms of ADR are also already binding. Due to the lack of legally binding judgements, individuals may still have to go to court. Third, structural problems are also currently reported. The problem lies in the fact that the recommendations must also be followed. According to the Social and Economic Council, this does not happen sufficiently. Finally, Meta’s Oversight Board is already coming close to being a certified out-of-court dispute settlement body, except it selects their cases instead of considering all applications. It may be precisely this case selection that allows it to settle disputes without costs for individuals and give recommendations quickly based on its expertise.
Nathalie Schnabl is a researcher at the Open Universiteit (the Netherlands) at the Department of Constitutional Law and Legal Theory. Her research focuses on access to the rule of law and the thresholds individuals face to access justice. She pays attention to the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Charter of Fundamental Rights of the European Union. Her research considers both court proceedings and Alternative Dispute Resolution. She will present at the 2023 CoI conference.
