MediaLaws is pleased to share the blog post by Giovanni De Gregorio and Oreste Pollicino about the “Auditing Platforms under the Digital Services Act”, published by verfassungsblog.
The authors write: “Taming the power of online platforms has become one of the central areas of the European Union’s policy in the digital age. The Digital Services Act can be considered a landmark example of the new regulatory architecture on online platforms. It now sees an articulated framework of obligations ranging from transparency safeguards to risk-based requirements, primarily oriented to the protection of fundamental rights, particularly providing additional obligations to platforms falling within the “very large” category.
Among these safeguards, the DSA increases the accountability of very large online platforms and very large search engines by introducing an auditing system. This ex-ante check aims to ensure independent experts verify compliance. Indeed, the DSA does not only introduce a new set of obligations and structure for enforcement but also extends the monitoring pressure on online platforms by providing another system to check compliance with the DSA, which would be otherwise scrutinised only ex-post, as in a case brought by a user highlighting a certain violation.
Nonetheless, the introduction of the obligation to conduct internal auditing for very large online platforms in the DSA is based on broader principles and open clauses. Even if the aim is to fight the opacity of the internal compliance process of very large online platforms, such an approach risks introducing a further layer of complexity. The many spaces of interpretation left by the European Commission lead auditors to play a critical role in defining the boundaries for correctly complying with the DSA, thus pushing these actors to act as regulators. This centralisation of decision-making is even more compelling considering the control exercised by online platforms on their spaces and the selection of auditors.
Within this framework, the audit process as defined by the DSA risks producing counterproductive consequences for the European policy objectives. From a constitutional perspective, the outsourcing of competence and decision-making from public to private actors articulates a system of compliance and enforcement based on multiple centres of power. The choice to delegate ex-ante monitoring to auditors could indeed become not a tile of a broader mosaic of compliance to increase the accountability of very large online platforms but itself an interpretative jigsaw shaped by the discretion of private actors. This situation would require the European Commission to expand the degree of details introduced by delegated acts and rely on participatory policy solutions, including co-regulation.”
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