Facebook preliminary views and comments on the Digital Services Act
Facebook welcomes the opportunity to share our very preliminary comments and observations
on the Digital Services Act. We support the ambition of the Digital Services Act to strengthen the
digital services market in the EU and provide clarity on the role and responsibilities of online
platforms to make the Internet safe. We want a legal framework that allows us to tackle the
problem of keeping the Internet safe and play our part in creating a healthier online
The Internet landscape has changed significantly since the adoption of the eCommerce
Directive, which established the limited liability regime for platforms under which many
innovative services have flourished in Europe and elsewhere over the past 20 years. There is
always room to adapt and modernise laws that were made two decades ago and the
eCommerce Directive is no different. We are looking forward to engaging in the coming months
with the EU institutions and supporting shaping of the Digital Services Act.
As Facebook, we seek a framework which allows actors in the online ecosystem to do more to
remove illegal and harmful content and help foster the trust of European citizens in digital
services. Online intermediaries, rights holders, users, governments and law enforcement all
have a role to act responsibly and improve the safety and trust in the Internet economy. The
Digital Services Act should aim to make the roles and responsibilities of different online actors
clear, and incentivise platforms to tackle illegal and harmful content. Liability regime
We do not want Facebook to be a platform for hate, abuse or exploitation, as we want to make
sure that our users are safe and that they trust and enjoy our platform. We consider it our
responsibility to take active steps to tackle abusive, harmful and illegal behaviour and content.
Such steps take account of the need to act swiftly to remove bad content content while also
accounting for the need to balance rights, such as free expression and access to information,
particularly where content is not manifestly unlawful.
Therefore, we welcome a strong endorsement in the DSA of the core principles from the
This includes country of origin principle and secondary liability for online
platforms, based on the notice and takedown system. We agree that DSA needs to clearly
distinguish between the liability and responsibility of online players. The law should continue to
assign primary liability to users that put illegal or harmful content online and limit the liability of
online service providers (whose services are in fact being abused in these situations). Liability
should not attach for illegal content of which the platform is not made aware.
We strongly support that prohibition of general monitoring is maintained in the DSA. Member
States may not impose a general obligation to systematically monitor information that intermediary
service providers transmit or store or. to actively look for actions indicating illegal activity. It would
be impossible and undesirable to require that content be pre-screened before it is uploaded on
the platform: such a requirement could lead to overblocking of perfectly lawful and legitimate
speech, as there is no foolproof way to identify and screen for specific kinds of illegal content. It
would also arguably place an undue burden on smaller companies starting out, who may be wary
of incurring legal liability and lack the resources to meet this obligation. Voluntary measures
Many platforms, like us, already have voluntary measures in place to better protect users.
However, any voluntary measure contains some inherent risks: too much control can compromise
the neutral status of the platform and, as a payoff, deprive the platform of the intermediary liability
protection. It is very important for the safety of our users that the European Commission
recognised this challenge and introduced in the DSA a clear legal incentive to undertake
without losing their legal protection.
This gives platforms legal certainty on
their activity that goes beyond the notice and action.
It is vitally important for Facebook that users enjoy their experience and that they feel secure
when they engage and share content online. Because certain illegal content is particularly
problematic, we have increasingly invested in the deployment and development of technology,
such as classifiers or matching technology, to help us catch and remove harmful content at scale.
The approach taken by the DSA will help protect and encourage these efforts. Harmful content
Any regulation should recognise the need to balance the removal of harmful content
protection of freedom of expression and other fundamental rights. Harmful content is contextual,
difficult to define, may be culturally subjective and is often legally ambiguous. Harmful content
should therefore not form part of the liability regime. At the same time, it is desirable for society
that online intermediaries have the capacity to moderate and enforce against lawful but potentially
harmful content according to their clear policies. Not all content is suitable for all platforms and
the communities they serve.
We therefore welcome that the Digital Services Act recognises that illegal content requires a
different set of provisions than harmful but legal content. In this context, we welcome the important
role that the European Commission assigns to co-regulation, risk assessments and mitigation
. However, these provisions are very broad and can encompass many content areas
and affect freedom of expression. Given the large fines for non compliance, there needs to be
more clarity about what exactly triggers sanctions. Regulation should recognise that
intermediaries face challenges when they do seek to remove harmful content pursuant to their
Transparency plays a pivotal role in any accountability model powered by regulation. We are of
the view that companies should be held accountable for the effectiveness of their systems, rather
than holding them liable for each individual piece of content. While one-off events or individual
pieces of content will test the effectiveness of the system, one-off events should not be the focus
when it comes to assessing compliance.
We welcome some aspects of the transparency reporting requirements. Among the transparency
reports that Facebook publishes on a regular basis is the Community Standards Enforcement
Report in relation to content we have enforced under our Community Standards, divided by
category, We have recently invited requests for proposals to independently audit and verify these
numbers. We therefore understand the requirement for independent audits, which should
enhance regulators ability to analyse platforms rather than require them to develop auditing skills.
Having an independent body perform this function should increase cooperation between
regulators, platforms, European institutions and others. The breadth of some of the auditing
obligations under the DSA should be clarified/improved as these could become a barrier for
growth in the sector.
As a large platform, we fully understand and accept our responsibility towards the users and the
broader ecosystem. However, the overall compliance burden provided by the DSA under the
transparency bucket for Very Large Platforms (VLOPS) is very significant. We need to make sure
that these provisions actually address the problems at hand and incentivise more responsible
behaviour from the platforms. There is a real risk that such a heavy burden would be a deterrent
for the ecosystem:
there is a real legal incentive for companies to remain under the threshold and
not be subject to these provisions.
For many digital services, including Facebook, algorithms are core to the value of the service.
Personalized algorithms are a core technology that helps Facebook to achieve its mission of
giving people the power to build community and bring the world closer together. Our large team
of researchers and engineers, based in Europe and globally, develops machine learning
algorithms that rank feeds, ads and search results in Facebook and Instagram, and creates new
text understanding algorithms that help to keep spam, misleading content, and other violations of
our content policies at bay. This technology can make our existing products better while also
enabling entirely new experiences, and it is absolutely instrumental in keeping people safe on our
platforms. We believe that any restrictions on personalized algorithms need to be carefully
considered as such restrictions would directly impact the quality of the service and negatively
impact the user experience on the platform. Additional points
There is some concern with the oversight and enforcement role granted to the European
Commission in this space. The powers seem disproportionate and there is a lack of safeguards
to better frame this power. We would therefore recommend more focus on the due process and
other safeguards around
competent authorities exercising their powers, and
that this needs to be
better reflected in the text.
There is also uncertainty around the composition of the Digital services coordinator /national
competent authority and its powers, versus the European Commission’s role and the role of the
Board. More clarity in this space would be welcomed.
We also would encourage more proportionality in assessing the out-of-court settlement
provisions. Should this requirement mean that ODR should be made available for every removal
decision on any piece of content with no additional threshold, it might need to be reviewed and
considered in light of proportionality principle. Conclusion
We would encourage that the legislative process on the DSA reflects and takes into account
existing legislative instruments, including the Audiovisual Media Services (“AVMS”) Directive, with
its approach to country of origin and to oversight and upcoming instruments, and the European
Democracy Action Plan (“EDAP”)
, which tackles important questions around elections integrity.
It is important to ensure harmonisation amongst all of these, learning from the examples from the
past and building towards the future of content regulation. Facebook hopes to further contribute
to this important work in the next few months.