EU lessons on dispute resolution

Last month, Derek and I, along with our UTS Law colleagues Karen Lee and Dean Anita Stuhmcke, attended a workshop at the University of Bayreuth in Germany. The workshop was centred around co-regulation in the digital platforms era. Amongst a wide variety of discussions on Australian and European approaches to digital platform regulation, one particular topic piqued my interest.

Ruairí Harrison spoke on the European Union’s out-of-court dispute resolution process introduced by Article 21 of the Digital Services Act (DSA). It provides an avenue for resolving disputes relating to content moderation decisions made by digital platforms. Intrigued by how this may inform Australia’s approach to digital platform complaints, I invited Ruairí to appear on the latest episode of Double Take. You can listen to it here, but here are a few takeaways.

Article 21 sets up a market for out-of-court dispute settlement bodies (ODS). I say market as the provision allows for the registration of a potentially unlimited number of these bodies, which can specialise across different factors such as platform (eg TikTok vs LinkedIn), language or content type (hate speech vs pornography, etc). ODS bodies must be certified by the Digital Services Coordinator (DSC) in their country of origin. DSCs are the designated national body in each EU member state responsible for enforcing and monitoring DSA obligations.

To become certified, a body must meet certain criteria such as independence and expertise, which, as Ruairí highlights, are already presenting questions. The Appeals Centre Europe, for example, was created with funding from Meta’s Oversight Board. Who is sufficiently qualified to handle content moderation and the necessary value judgments has also been the subject of academic debate.

For me, perhaps the most intriguing aspect is that decisions by ODS bodies are non-binding. Instead, as Ruairí and I discussed, the DSA mandates 'good faith' engagement, so consistently ignoring findings could attract regulatory scrutiny from DSCs or as part of a platform’s overall risk mitigation requirements under the DSA; this is of course in addition to any reputational factors and the potential value of using ODS decisions as feedback to improve internal systems.

But how may this approach assist other jurisdictions like Australia? Early signs show that even in its infancy, the currently registered ODS bodies are receiving a steady stream of disputes to handle. Despite this, Ruairí believes improving accessibility and maximising awareness of such redress platforms remains a key challenge.

This challenge is not unique to the EU. In Australia, the Telecommunications Industry Ombudsman (TIO) faces similar issues in ensuring that telco customers are aware of and can easily access its dispute resolution mechanisms. Coincidentally, there has been some interest in expanding the TIO’s remit to digital platform complaints. Otherwise, there’s not enough data at this stage to draw any concrete conclusions about the success of the EU’s approach. However, it’s something worth keeping an eye on now that the freshly re-elected government will surely be turning its attention back to its legislative agenda, including how it deals with digital platforms.