The EUI Digital Public Sphere Working Group hosts LAW Researcher, Francisco de Abreu Duarte's presentation of his draft paper "The Digital Equilibrium Hypothesis: between corporate and public power in online content moderation".
This presentation introduces the concept of the Digital Equilibrium in the European Union (E.U.). Francisco de Abreu Duarte explains how the burdens of online content moderation have traditionally been shared between corporate and public power. This is now changing with a ‘return of the state’ (Haggart, Tusikov, Scholte) and an increase in online service providers' obligations. The paper normatively concludes that the future for online content moderation is a triangle composed of corporate, state, and individual actors, which dynamically interact in shaping and enforcing online standards.
Abstract
The paper argues that online content has been governed in Europe by both public (state and supranational institutions) and corporate forces (online platforms), constituting two sides of a regulatory spectrum of online speech moderation. In 'The Original Equilibrium', the paper explores the notion of regulatory equilibrium, describing the dialectic dynamics of public and corporate forces in crafting a co-regulatory balance for online speech. For this effect, two symmetric phenomena are described: i) a privatization of public power, by which States/ the E.U delegate the moderation and standard-setting of online speech; and ii) a publicization of private power, by which corporations agree to incorporate public values and due process considerations into their communities' management, as long as states or the E.U pass no extreme regulation. They both constitute the foundational stones of online speech regulation in the past twenty years in Europe.
The paper then demonstrates how such digital Equilibrium is now under revision. In Section II - ‘Disequilibrium’- the paper analyzes the current imbalance between both actors using terrorist online content and copyright legislation as examples. The paper traces these changes back to the first terrorist attacks in Europe in 2016. This disequilibrium allowed new ideas on platform regulation to be discussed and tested, opening the door to the rise of individuals/users.
Finally, in Section III – ‘The New Equilibrium’ – the paper argues that a new equilibrium will arise with the approval of the Digital Services Act. This new balance will be made of public, corporate and individual regulatory power. Moving away from a mere passive regulatory role, the Section argues that the DSA empowers users to check on platforms' power. By introducing transparency and due process requirements, the DSA introduces individuals into the regulatory game, giving them an actual Voice in shaping online rules.