18 June 2021
Safeguarding freedom of speech online – a joint non-paper on
the DSA by Sweden, Ireland and Finland
The Digital Services Act seeks to ensure, among other things, harmonised
means to handle illegal content online. A fundamental question arising from
our analysis of the proposal is what type of content should be included in
the scope of the regulation.
It is vital that people can speak their mind through online platforms.
Therefore, the risk of over-removal must be reduced to a minimum.
The assessment of whether a certain piece of information should be deemed
illegal often involves difficult legal considerations. We wish to reduce the
number of misjudgements in these assessments, especially when platforms
manage content by automatic means. To this end, we suggest that when
platforms make assessments of content, the assessment should be
limited to whether the content is clearly illegal or not
. When only
apparently illegal material is covered by the relevant provisions, no measures
are expected against unclear cases, for instance when the material itself lack
detail needed to assess the legality of the content or when the available
information regarding the legality of the material is insufficient. Nuanced
cases that require bespoke analysis of a national law should not necessitate
removal. This will limit the overall risk of over-removal and the regulation
will thereby be less suppressive on freedom of speech.
This should not affect the capabilities of the platforms to set out conditions
for the use of their services, allowing them to act against content that is in
violation of their terms and conditions. Platforms should remain free to do
We therefore propose to limit the provisions dealing with expectations
on platforms to assess and act against illegal content to apply only to
content that is manifestly illegal
. For example, in the case of notice and
action mechanisms, the result of the provisions would be that online
platforms would only have to take measures against manifestly illegal
content. This would require amendment of certain provisions regulating the
notice and action system but is not intended to change the exemption of
liability in article 5. The terminology manifestly illegal is already used in the
proposal. If the same terminology were to be used in a consequent manner
in the articles where platforms are expected to act against illegal content, a
balanced regulation could be achieved, that is less restrictive on the
fundamental right of freedom of speech. By doing so, we believe we will also
increase legal certainty and ease the administrative burden on platforms and
consequently upon the national Digital Service Coordinators themselves.