While platforms currently have no obligation to incorporate fundamental rights into their terms of service, an important provision in the EU’s proposed Digital Services Act (DSA), may potentially go some way in this direction. Notably, art. 12 DSA lays down new rules on how platforms can enforce their terms of service, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this post, we examine the regime of art. 12 DSA and ask whether its current wording requires providers of intermediary services, among them online platforms, to apply EU fundamental rights law, including the right to freedom of expression, in content moderation decisions based on a platform’s terms and conditions.
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Originally published by DSA Observatory.