The Digital Services Act’s red line: what the Commission can and cannot do about disinformation

Abstract

The Digital Services Act (DSA) creates a system of general risk management that is composed of two main obligations: risk assessment (Article 34), and risk mitigation (Article 35). The obligations are mandatory for very large online platforms and search engines (VLOPs/VLOSEs). The adoption of the risk-based approach to digital services make the law more future-proof. But inevitably it also makes the law very vague. This vagueness of the statutory language causes some to suggest that the European Commission will inevitably become the proverbial Ministry of Truth when tackling disinformation. This article argues that upon closer reading of the DSA, and its constitutional context, the worries that the Commission inevitably becomes a Ministry of Truth are misplaced. Suppressing incorrect or misleading lawful information is not the goal of the DSA. That is not to say that the DSA cannot be abused. But the law is not pre-programmed to do so.

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