TikTok Position Paper, Digital Services Act
Introduction to TikTok
TikTok is the world’s leading destination for short-form mobile video. Videos uploaded on our
entertainment platform are typically between 15 and 60 seconds long, and everyone uses those
seconds differently - to land a joke, to debut a song, to share a recipe and, of course, to dance.
Particularly during the COVID-19 pandemic, TikTok has been harnessed by our users as a forum
TikTok is a challenger company that intends to learn from past industry experiences. Despite
being two years old, we have been fortunate and humbled to see such high growth and interest
in our platform and we have more than 100m monthly active users in Europe1 - which makes us
a ‘Very Large Online Platform’
as defined in the Digital Services Act (DSA). We are some way
behind other more established platforms in terms of resources and infrastructure, however, we
take our responsibilities towards our users very seriously and it is in this context that we also
approach the DSA debate.
As part of our company expansion, we established our EMEA Trust and Safety Hub
in Dublin at
the start of 2020.2 This team in Ireland ensures that our overall approach to content moderation
is aligned with European laws, culture and context, and we work closely with regional
regulators, policymakers, government and law enforcement agencies in pursuit of the highest
standard of user safety possible.
Our Approach to Trust, Transparency and Accountability
At TikTok, we believe that transparency and accountability are essential cornerstones of
enabling trust with our users – and in particular, we are committed to transparency in how we
operate, moderate and recommend content. Against this background, we have opened aTransparency and Accountability Centre
3 for policy makers and experts to see first-hand how
we're working to build a safe and secure platform for our growing community. This builds on
work that we are already doing to increase visibility into how our platform operates, including
publishing regular Transparency Reports
4 and sharing more about how we recommend
content.5 Essentially, we believe that all companies should be in a position to explain their
algorithms and moderation policies to regulators.
We also recently announced the set up of a European Safety Advisory Council
6 which brings
together leaders from academia and civil society from all around Europe. Each member brings a
different perspective on the challenges that we face as a platform, and members will provide
subject matter expertise as they advise us on our content moderation policies and practices.
Not only will they support us in developing forward-looking policies that address the challenges
we face today, they will also help us to identify emerging issues that affect TikTok and our
community in the future. In this way, we will be supported in our efforts to continually assess
risk on our platform and take appropriate mitigation measures.
TikTok believes that the DSA proposal is a very good baseline framework and we are encouraged
to see that transparency is seen by policy makers as a means to ensure accountability towards
users and regulators. The ambition to have a horizontal, flexible framework which is coherent
with other legal instruments in the area of online content and which acts as an important
harmonisation mechanism for other national efforts, is to be applauded. Moreover, the DSA has
the potential to be a modern and exemplary approach to the regulation of digital services, from
which other regions may draw some inspiration.
We are pleased to see that many of the foundational principles of the eCommerce Directive
have been maintained, such as the general intermediary liability framework outline and the
no-general-monitoring principle, as well as the Country of Origin basis. This well-understood
framework has facilitated innovation over the years and has enabled challenger companies such
as TikTok to enter into the marketplace.
We also support a focus on illegal content
within the proposal, as this is where we can find
most legal certainty. Overall, we believe that the Commission has proposed a sophisticated
means to deal with harmful content through self and co-regulatory agreements such as the
Code of Practice on Disinformation, of which TikTok is a signatory. We will look forward to
working with policy makers to better define the co-regulatory backstop referenced in the DSA.
A notable enhancement to the European framework in protecting the ability to undertakevoluntary own-initiative investigations
) is extremely welcome and provides
much-needed legal clarity for platforms who wish to pursue good faith initiatives.
Articles 8 and 9
, which deal with orders from authorities regarding action against illegal
content and the provision of information,
would benefit from some expansion to clarify how
cross-border scenarios should be handled. For example, how should the process work in the
case of an order that is received for action or information on something that is illegal in the
issuing Member State but which is not illegal in the service provider’s country of establishment?
Furthermore, these articles lack necessary information around how providers could challenge
orders that are unsubstantiated, disproportionate, or unlawful.
We welcome the additional guidelines on Notice and Action
contained within Article 14
understand that some are calling for specific timelines for response/action, however, platforms
often face very complex cases and in order to do a thorough evaluation and to avoid any
overblocking - with potential consequences for users’ fundamental rights - in order to meet
timelines, it is crucial that there is no set time frame other than a commitment to no “undue
delay”. Furthermore, including a staydown provision would be problematic as there can be
challenges involved with video imaging and small changes in formatting, as well as potential
conflict with the no-general-monitoring principle in Article 7. Some suggested improvements in
this section would include specification in Article 14.3 that ‘actual knowledge’ is only triggered
when the notification requirements in Article 14.2 have been fulfilled and an individual has
handled the notice. Furthermore, ‘action’ should take into account any service provider
response on the notice, be that via action taken on the content or indeed a decision not to act
against the content.
While TikTok is very supportive of the DSA’s overall emphasis on transparency,
it is important to
ask at every stage whether we will achieve broader policy goals and objectives. TikTok is
prepared to go to great lengths to provide data access and to publish details about its practices
and decisions, however, we also have to bear in mind that there can be risks in the area of data
protection and also some commercial sensitivity (trade secrets). Furthermore, too much
information in the wrong hands may have unintended consequences. We know that there are
nefarious actors who actively seek to game and defraud platforms’ systems and as such, we
would, in particular, urge extreme caution in the publication of case decisions and full
statements of reasons on a publicly accessible Commission database, as proposed in Article 15
Moreover, the volume of information that will have to be sent by each platform and
managed/hosted by the Commission is likely to be enormous.
Many of TikTok’s services and features are offered in-app, to allow for a user-friendly and
frictionless mobile experience. The advantage of operating in this way is that we can deliver
information quickly and directly to users, enabling users to access important information on the
go. In addition to this, TikTok account holders, and also those who do not have TikTok accounts,
can very easily report any video7 which they believe violates our Community Guidelines8. It may
be the case that the level of detail proposed for the statement of reasons (Article 15
) is not
feasible in-app, forcing a different mode of reporting and/or information delivery / display and
perhaps the collection of additional personal details (such as email) in order to comply with the
requirements, as well as a possible reduction in reporting because of added friction. It will also
be important to bear this mobile experience in mind for the requirements on ad
transparency/provision of meaningful information in Article 24
, although TikTok is generally
supportive of improved ad labelling. Overall, some level of system build will be required in order
to support data retention and display requirements associated with Articles 17
(complaints-handling / 6 month allowance) and 30
(ad repository). There will also be data
protection considerations in Article 17.
We note that there are considerable reporting requirements
on Very Large Online Platforms
which will extend across the entire year: transparency reports (Articles 13 and 23)
reporting requirements such as the number of active users in each Member State (Article 23.2
systemic risk assessment / risk mitigation (Articles 26 and 27
) and an independent audit (Article
). While TikTok does not oppose these initiatives per se, it would be useful to clarify the
audience for each output (users? Digital Services Coordinators? European Commission?) and to
take a problem/issue-specific approach. In some cases, such as reporting on the number of
active users in each Member State, the information may be commercially sensitive, although it
may depend on to whom/how this information should be supplied (currently undefined).
Furthermore, some flexibility should be left to platforms to present their output as fitting to
their unique data sets and service types. More broadly, it may be useful to consider extending
the obligations around transparency reporting to trusted flaggers, competent authorities and
out-of-court settlement bodies, so that a more holistic view of what is happening across the
ecosystem can be taken.
It is also worth pointing out that responsible platforms, such as TikTok, are continually assessing
and addressing risk on their platforms. Evidence of this can be found in TikTok’s online
Newsroom where we regularly post updates to our policies and Community Guidelines9 and
outline new measures that we are adopting in the area of content moderation10. In addition,
platforms may be taking additional steps such as creating a Safety Advisory Council. In view of
this, it could be worth considering offsetting a reporting requirement - or indeed the regularity
of reporting - with another demonstrable accountability mechanism or practical evidence of
internal systemic risk assessments. Alternatively, an audit requirement alert could perhaps be
triggered if flags are showing up in a platform’s Transparency Report. It is also important to
recognise the important role and responsibility of the compliance officer (Article 32
). In adding
more flexible mechanisms such as this, policy objectives might be met in a more meaningful
and targeted way.
Aside from these main issues, TikTok has a number of other suggestions / requests for
, as follows:
1. Article 2(g)
. The reference to “an [illegal] activity”
is confusing and should be removed
as it potentially reaches beyond what would be understood as “illegal content”. By way
of example, if a user uploads a video which shows a handbag being lifted/stolen in the
background, a platform is not able to verify that this is indeed what is happening.
2. Article 18.
It is unclear whether an out-of-court dispute settlement process
warranted in addition to the availability of the court system and Alternative Dispute
Resolution procedures. At a minimum, reference should be made to the possibility for
parties to challenge the conclusion of a dispute settlement body in the event that a
party disagrees with the outcome, in order to maintain full access to the justice system.
3. Article 19.
Involve online platforms in the Trusted Flagger
status award process. For
example, TikTok has an onboarding process for its Trusted Flaggers and completion of
this process would continue to be important to us. Overall, it is important that a balance
is maintained in the Trusted Flagger system so that, for example, there is representation
9 Eg https://newsroom.tiktok.com/en-ie/refreshing-policies-to-support-community-wel -being
10 Eg https://newsroom.tiktok.com/en-gb/countering-hate-on-tiktok-gb
both in terms of geography and issue type. And as mentioned above, transparency
reporting for Trusted Flaggers would be worth considering.
4. Article 21.
The scope of this article on notifications of criminal offences
and it should also be made clear that there is no resulting constructive liability for
situations that are not notified to law enforcement by a service provider.
Reasonableness and proportionality should be considered, as well as any obligations for
service providers under existing/incoming legislation (eg CSAM).
5. Article 28
. Who is intended to fulfil the role of the independent auditor
? Availability of
experts in this field will be important in order to ensure that this obligation can be met.
6. Article 31.2.
It is unclear how the status of ‘vetted researcher’
is reached and who
would undertake this role. More transparency in this area is needed, including on
funding of researchers.
7. Article 74.
A three month ‘entry into force’
period is unrealistic given the substantial
process, policy and system revisions that will need to be made by platforms. It is
understood that this short period was set given the anticipated lengthy legislative
debate, however, given the broad consensus on direction of travel, this may be shorter
than expected. An 18-24 month implementation period would be more reasonable.
The DSA has all the elements of a modern and successful regulatory framework for digital
services in the EU. Further refinement and added clarity in some areas will be welcome but
overall, TikTok supports the aim of this proposal. We underline that any new requirements must
be achievable, proportionate and provide real added-value, and we look forward to engaging in
the legislative process and to providing any additional input that would be helpful for policy