Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory

 

Professor Steve Peers, University of Essex

Immigration status is often lost due to a certain period of absence from the territory of the country which granted it. But what if that absence is briefly interrupted? The CJEU addressed that issue in a recent judgment concerning non-EU citizens with EU long-term resident status – which may also be relevant to those covered by EU free movement law and the Brexit withdrawal agreement.

Background

The recent judgment interpreted the EU’s long-term residence (LTR) directive, adopted back in 2003 and amended in 2011 to include refugees and people with subsidiary protection, which the Commission plans to propose amendments to in April. Ireland, Denmark, and the UK (when a Member State) opted out of the legislation – although the Directive is now relevant to British citizens as non-EU citizens (I previously discussed its application to UK citizens here).

After five years’ legal residence, the Directive provides that non-EU citizens can apply for long-term residence status in a Member State, subject to meeting certain conditions, which guarantees them a degree of equal treatment, a modest facilitation of the prospect of moving to another Member State (falling short of free movement law), and some protection against expulsion. The Directive exists alongside national forms of permanent residence, so not all those eligible for it will have it: some will have the purely national version.

Once obtained, how can EU long-term residence status be lost? Article 9 of the Directive provides that it is lost or withdrawn due to fraud, expulsion, or ‘in the event of absence from the territory of the Community for a period of 12 consecutive months’ (emphasis added). Member States may provide that ‘absences exceeding 12 consecutive months or for specific or exceptional reasons’ do not lead to loss or withdrawal. They may also remove the status where there is a ‘threat to public policy’ due to serious offences, falling short of the threshold for expulsion. LTR status from one Member State is also lost once it is obtained after gaining it from another Member State after residing there.

There is a second provision on absence, providing that LTR status is lost after six years’ absence from the Member State that granted it – although a Member State may provide that the status is nevertheless retained ‘for specific reasons’. (This appears to be limited to cases where the LTR status holder moved to another Member State). As regards both of the rules on absences, Member States ‘shall provide for a facilitated procedure for the re-acquisition of long-term resident status’, which ‘shall apply in particular to the cases of persons that have resided in a second Member State on grounds of pursuit of studies’. However, the conditions and procedure for re-acquiring this status ‘shall be determined by national law’.

Finally, LTR status cannot be lost solely due to the expiry of an LTR residence permit, and if the loss of LTR status does not lead to removal, ‘the Member State shall authorise the person concerned to remain in its territory if he/she fulfils the conditions provided for in its national legislation and/or if he/she does not constitute a threat to public policy or public security’.

The CJEU judgment

The recent judgment concerned a Kazakh citizen with LTR status from Austria. He applied for renewal of his permit in 2018, but the Austrian authorities turned his application down in 2019 because, for the five-year period between August 2013 and August 2018, he had only spent a few days each year within the EU. He argued that the ‘absence’ exception must be interpreted strictly, so that a return to the EU territory for only a few days within each year was sufficient to interrupt the break, and justify the continuation of his LTR status. In his view, it was not necessary to show that he was ‘physically established’ or had his ‘habitual residence’ in the territory. The national court (the Administrative Court of Vienna) was sympathetic to this interpretation, but asked the CJEU questions to confirm it.

In the Court’s view, in the absence of any reference to the national law of Member States, the concept of ‘absence’ had to be ‘regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union…taking into account the wording of that provision, its context, and the purpose of the rules of which it forms part’.

Starting with the wording of the clause, most language versions used a term ‘equivalent’ to ‘absence’. The Court noted that ‘the usual meaning of that term in everyday language’ was ‘the physical ‘non-presence’ of the long-term resident concerned in the territory’ of the EU; hence ‘any physical presence of the person concerned in that territory is capable of interrupting such an absence’. Although the German and Dutch language versions of the Directive used words which implied instead ‘staying or remaining’ on EU territory, ‘and could therefore, depending on the context, imply a more permanent presence than a physical presence of any duration’, those words could also refer to ‘a mere physical non-presence’; and other parts of the German and Dutch language versions of Article 9 did use words ‘which correspond to the concept of ‘absence’’.

Secondly, the context of the Directive provided for the permanence of LTR status, ‘subject to Article 9’. So permanent LTR status was ‘the general rule’, and Article 9 was a ‘derogation’ which must be interpreted ‘strictly’. This ‘suggests that there should not be a broad interpretation of Article 9’, ie it is should not be interpreted to mean that ‘mere physical presence’ was insufficient to interrupt absence from the EU.

Also, the rule on acquisition of LTR status expressly ‘requires the presence of the person concerned in the relevant territory to go beyond a mere physical presence and that it be of a certain duration or have a certain stability’ – ie to ‘reside…legally and continuously for five years immediately prior to the submission of [his or her] application, subject to the periods of absence permitted under Article 4(3) of that directive.’ Details like this are lacking in the provision on loss of status, which ‘in particular’ does not say that ‘the presence of the person concerned in that territory must be of a certain duration or have a certain stability such as’ having ‘his or her habitual residence or centre of interests in that territory’. Nor are there ‘any other conditions relating to the duration or nature of that presence’, such as ‘an ‘actual and authentic link’ with respect to the same territory’, like ‘family members or assets’.

Finally, as for the objective of the Directive, the preamble stated that it aimed at integration of long-term resident non-EU citizens into the territory of the EU, by bringing their status closer to that of EU citizens and ‘establishing equal treatment with the latter in a wide range of economic and social fields’. This supported an interpretation of Article 9 to mean that those who have demonstrated they are sufficiently ‘settled’ to obtain LTR status ‘are, in principle, free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union, without that thereby entailing the loss of their long-term resident status’, subject to not being absent for 12 consecutive months.

Also, the objective of legal certainty – which the preamble refers to as regards procedural rights – must also apply to the issue of loss of the status (referring to the Commission’s proposal, which stated that the sole grounds of losing LTR status should be listed in the proposal). The Court’s interpretation best met the objective of legal certainty, as the ‘maintenance of’ LTR status was ‘dependent on a clear, precise and predictable criterion relating to a simple objective event’.

Finally, the purpose of the absence rule was to prevent non-EU citizens from keeping LTR status where it no longer served any purpose in achieving the objective of integration.  It referred to the purpose of the parallel clause on the loss of permanent residence status under EU free movement law, ie justification for that loss because ‘the link with the host Member State is loosened’.  Although the free movement Directive and the long-term residence Directive

…differ from one another in terms of their subject matter and objectives, the fact remains that, as the Advocate General also pointed out, in essence, in points 40 to 43 of his Opinion, the provisions of those directives may lend themselves to a comparative analysis and, where appropriate, be interpreted in a similar way, which is justified, in particular in the case of [the provisions on loss due to absence], which are based on the same logic. [para 43]

It followed that the link is loosened only after an absence for 12 consecutive months; and to interrupt that absence, ‘it is sufficient for the long-term national concerned to be present…in the territory of the European Union, even if such presence does not exceed a few days’. This must, however, ‘be distinguished from the situation where there is evidence that such a resident has committed a misuse of rights’, although there was no evidence of such a misuse in this case.

Comments

The Court’s reasoning in this judgment is largely convincing. Its approach to interpreting the wording of the law is consistent with prior judgments, as regards a uniform interpretation under EU law in the absence of a reference to national law, and siding with the majority of language versions – and furthermore, as the Court points out, the German and Dutch language versions do not unambiguously suggest the opposite interpretation either. As for the context of the law, both the ‘interpret the rule widely/interpret derogations strictly’ approach and the a contrario approach (where the drafters wanted to specify there were requirements beyond mere presence on the territory, they expressly did so) are consistent with the Court’s usual canons of interpretation.

On the other hand, its analysis as regards the objective of the Directive is less persuasive. It starts out by referring to the objective of integration, which may point to the opposite interpretation to that which the Court reaches: can it easily be argued that a non-EU citizen who spends only a few days a year on EU territory for a five-year period is still integrated into a Member State’s territory? The Court narrowly avoids painting itself into this corner by framing integration as a form of equality with Member States’ citizens, who can come and go as they please without losing citizenship. But in fact some Member States do withdraw their nationality – and therefore EU citizenship – due to absence, in combination with other factors, and the Court has even ruled on that issue. The comparison with EU free movement law isn’t too convincing, because the Court has not yet ruled on the interruption of absence point in that context. And while the legal certainty point is convincing as far as it goes, it is undercut both by the Court’s lack of clarity on what a ‘few days’ interruption of absence means exactly, and by its creation of a ‘misuse of rights’ exception, which it does not define further except to assert that the exception does not seem to apply in this case.

Are these two points the same – ie a yearly dash through Schiphol airport in transit between Heathrow and New York does not count as interruption of absence? If so, the rule must be further explained. Or are they, as it appears, two different rules? If so, those two rules need to be explained further.

As for the implications of the judgment, it is first and foremost surely logical that this judgment applies to the second method of losing LTR status due to absence, ie by six years’ absence from the Member State that granted the status. It would be very odd to interpret an essentially identical concept appearing in the same Article of the same Directive differently. The judgment also strongly implies that the grounds of loss of status are exhaustive, and that the other grounds for loss of status should be interpreted narrowly. (However, note that in a previous judgment the Court interpreted the ‘fraud’ ground for loss of status broadly, ie it was lost even when the non-EU citizen concerned had not personally committed that fraud). The judgment is not relevant by analogy to periods of absence while accruing the initial five years’ legal residence to obtain an LTR permit, because there is a more specific rule applicable there.

Going outside the LTR Directive, the Court’s judgment explicitly suggests that the rules on absence in free movement law must be interpreted the same way – ie ‘Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’ Due to its close links with free movement law, it is arguable that the absence clause in the Brexit withdrawal agreement should also be interpreted this way (‘Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.’)

 

Barnard & Peers: chapter 26

Photo credit: Uri Baruchin, via wikicommons

 

Consent and Cookies in EU Data Privacy Law— Two Clicks are Too Many

 

 

 

Dr Asress Adimi Gikay (PhD, SJD, LLM), Lecturer in AI, Disruptive Innovation, Law Brunel Law School (Brunel University London); Twitter: @DrAsressGikay

 

Consent and Data Protection in the European Union

European Union data protection law is based on the conception that data protection is a fundamental right, something the General Data Protection Regulation (GDPR) upholds. Thus, personal data processing requires complying with stringent legal requirements. The GDPR prescribes that consent be specific, informed, unambiguous and given freely, requiring affirmative action by the individual. Over the years, companies have circumvented the consent requirement by resorting to various tactics.

In December 2021, the French Data Protection Authority, Commission Nationale de l’Informatique et des Libertés (CNIL), imposed sanctions on Facebook (€60 million) and Google (€150 million) for illegal use of cookies—against the consent requirement. If Facebook and Google do not comply with the decisions in three months from the decision date, they would be paying 100,000 Euros for each day of non-compliance. The decision being made under the ePrivacy Directive is not subject to the GDPR's one-stop-shop cooperation mechanism, so the French decisions bind the companies concerned only in France and would probably (if at all) affect cookies practice in other industries in France only. Nevertheless, websites across the EU and UK are non-compliant with the consent requirement in their use of cookies.

First Rule of Cookies— Consent— has Always Been Tricky

Despite data protection law aiming to give individuals control over their personal information through consent, researchers have argued that several challenges weaken the individuals’ informational control. Due to the sophistication of privacy policies and the complex systems of data collection coupled with the individuals’ limited cognitive ability to process information, they lack sufficient informational control. In many cases, data collection consent forms or privacy policies are adhesion contracts where the data subjects(individuals) have no power to bargain. This is notwithstanding the fact that consent forms should be decoupled from the provision of goods and services and not be imposed on the individual. Even if privacy agreements were to be negotiable,  individuals do not have the time to adequately scrutinize them due to information overload coupled with challenges in understanding technical jargon.

In a 2020 Eurobarometer survey conducted in EU Member states, 37% of the participants responded that they do not read online privacy policies while 47% and 13% read them partially and fully, respectively. Those who read privacy policies partially or do not read them at all indicated that privacy policies are too long (66%) or unclear and difficult to understand (31%). Some responded that it is sufficient for them to know that the entity they deal with has a privacy policy (17%). While some believed that they would be protected by law anyway (15%), others believed that websites would not honour privacy terms (10%). The survey highlights that only a small minority of individuals interacting over the internet read and scrutinize privacy policies. The majority are not adequately protected by the consent requirement even without the added challenge of cookies technology.

Second Rule of Cookies—No Preselected Tick Boxes

As data collection in a traditional setting where the individual supplies the information and consents to its processing is being more tightly regulated, companies have been operating with more efficient data collection and analysis method—deploying cookies. Cookies are small text files that websites place on the user’s devices(terminal equipment) as the user browses to allow the website to recognize the user's device and collect information about the user's browsing behaviour. While cookies serve multiple purposes, including the proper functioning of websites, they notably analyze the user's browsing behaviour for providing personalized advertisement(marketing cookies). As cookies can collect personal data, their use should comply with personal data protection law—the ePrivacy Directive & GDPR.

Although the primary law governing cookies is the ePrivacy Directive, the consent requirement under that Directive is governed by the GDPR. Despite the requirements of the ePrivacy Directive and the GDPR, companies have been applying questionable procedures to launch cookies on the devices of millions of citizens. Most web-based data controllers used to present preselected tick boxes that, by default, made individuals accept cookies on their devices from the relevant website as well as a third-party website(s) until 2019 when Court of Justice of the European Union (CJEU) handed down a judgment in the Planet49 case, specifying that websites could no longer set cookies procedures to require positive action for the individual to opt-out of cookies based-tracking of their behaviour. The judgment was meant to address the rampant tracking of individuals' behaviour for marketing purposes by requiring them to untick preselected checkboxes if they wish to opt out. The preselected checkbox contravenes GDPR consent rules which require consent to be manifested by affirmative action. The CJEU's judgment has not changed cookies-based data collection as most websites  merely switched to different tricks.

Third Rule of Cookies—Two Clicks are Too Many

In December 2021, the CNIL imposed sanctions on Facebook and Google for the illegal use of cookies. According to the decision, FACEBOOK FRANCE made refusing cookies policy more difficult than accepting them. A Facebook user who wishes to log into FACEBOOK FRANCE would be shown a pop-up window (“Accept Facebook cookies in this browser”) which has two buttons —“Manage Data Settings" and "Accept Cookies." Users who click "Accept Cookies" consent to cookies being stored on their computers, whereas those who want to refuse have to take further steps. They have to click on "Manage Cookies" to see a second window which in turn has two buttons— "Accept Cookies" and "Reject Cookies". However, various cookies options in the second window are not preselected, so clicking "Accept" at this stage without further action does not lead to consenting to cookies use. Those who wish to accept some cookies can activate the enable button (slide button) and accept the cookies. However, the CNIL Tribunal argued that users should not be taken to the second window to refuse cookies while they can accept cookies on the first window with one click—two clicks are too many. In essence, the decision establishes that  rejecting cookies should be as easy as accepting them.

The CNIL has made a similar decision against Google’s cookies practice. Facebook submitted a screenshot of the expected cookies procedure update for Europe, including France. The change anticipated has been implemented as of January 2022.  The update changed  "Manage Data Settings" and "Accept all", respectively to “Other options” and “Allow all cookies”. In the second window (once the user clicks “other options”), the new button is entitled “Allow essential cookies only” which appears next to “Allow all cookies”. The CNIL Committee found these anticipated changes to be insignificant regarding the validity of cookies consent.  

Facebook's argument that for valid consent to be obtained, the GDPR does not require accepting and rejecting cookies to be equally easy was rejected. The CNIL clarified that the GDPR requires consent to be obtained freely. If accepting cookies is easier than rejecting them, individuals would be influenced to consent rather than make a free choice. This is consistent with a 2020 study (cited in the decision) that 93.1% of users who are given the option to manage their cookies setting in the second window accept the cookies without going to the second window. Fatigued by a constant request for consent, individuals accept the cookies without attempting to change their settings. Companies are capitalizing on this to collect data illegally from our devices. 

What Happens in the other EU Member States & the UK?

The decision of the CNIL being taken under the ePrivacy Directive is not subject to the GDPR’s one-stop-shop mechanism. Thus, it is binding on Facebook and Google only in France. Until all EU Member States, as well as the UK, take similar steps, both companies are unlikely to change their cookies use practice in other countries. Many other companies still use dubious cookies policies. The majority of the websites give the user the opportunity to reject cookies only with the second click, i.e., at the second window, while users can accept the cookies with one click. 

Companies that have this type of cookie setting include social media giants such as  Twitter and Instagram, news sites such as the New York Times and the Washington Post and brick and mortar companies such as Barclays UK. Even public institutions, including universities, have similar data collection and analysis practices. All these companies have cookies settings that do not comply with the GDPR/ePrivacy Directive as interpreted by the French DPA. It is only a matter of time before other DPAs follow the footstep of the CNIL.

 

Photo credit: Eran Sandler, via wikimedia commons

Rainbow families and the right to freedom of movement – the V.М.А.v Stolichna obshtina, rayon ‘Pancharevo’ case

Chiara De Capitani, Linguist agent at the European Commission and honorary fellow European Union law at the University of Naples "L'Orientale". The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission.

Introduction

‘A child is in no way responsible for the differences in the scales of values in society between EU Member States’, notes Advocate General Juliane Kokott in her opinion (AG’s opinion). Yet, unfortunately, children of rainbow families face the very real risk to have their legal ties to one or both parents disappear once they cross the border of their Member State of residence. A recent study by the European Parliament (the ‘EP Study’ by Tryfonidou, Wintemute) found that in at least 11 EU Member States same-sex couples with children may not be legally recognised as the joint parents of their children.

The present Grand Chamber ruling, C‑490/20 V.М.А. v Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria) tackles a recurring problem faced by rainbow families: the refusal from an EU Member State to recognise a birth certificate issued in another Member State that indicates two parents of the same sex as the legal parents of a child. This Court of Justice of the European Union (CJEU) ruling builds on the 2019’s C‑673/16 Coman and others ruling (discussed here) and allows the AG and the CJEU to explore and clarify several aspects of the tension between the cross-border protection of family life and the best interests of the child with a Member States’ protection of its national identity.

Facts of the case

A same-sex couple composed of a Bulgarian national (V.M.A, the applicant) and a British national (K.D.K) have been residing in Spain since 2015 and built their family life there: they married in 2018 and welcomed a baby daughter (S.D.K.A) in 2019. The Spanish authorities issued the child a birth certificate recognising both partners as her mothers and not disclosing who gave birth to her.

V.M.A requested the Bulgarian authorities issue her daughter a Bulgarian birth certificate, a pre-condition under Bulgarian law to issue identity documents certifying the latter’s Bulgarian citizenship. However, Bulgarian law only recognises heterosexual marriages and the parentage of children as composed of a father and a mother. Therefore, Bulgarian authorities rejected the application for the issuing of a Bulgarian birth certificate on two grounds: the absence of information concerning the child’s birth mother and the fact that the registration of two same-sex parents in a birth certificate is contrary to Bulgarian public policy. The applicant brought an action against the refusal decision before the Administrative Court of the City of Sofia (the referring court).

Analysis

The Court’s answer to the recast ‘judgment of Solomon’

This already complex case is off to a rocky start when, at the hearing, the Bulgarian Government refutes the referring court’s claim that the child is a Bulgarian national. The referring court considers that the child has Bulgarian nationality under Article 25(1) of the Constitution of Bulgaria stating that ‘a person is a Bulgarian national if at least one of the parents is a Bulgarian national’. On the other hand, the Bulgarian government considers that the Bulgarian mother, to be recognized as such, has either to disclose that she gave birth to the daughter or proceed to become the “legal mother” following Article 64 of the Family Code.

These hypothetical possibilities offered by the government create a twisted “judgment of Solomon”-type of situation for both mothers: they can either sacrifice their daughter’s claim to Bulgarian citizenship and the derived family law rights this implies with the Bulgarian mother or they can defend their daughter’s right to Bulgarian citizenship by claiming the Bulgarian mother is the sole mother, severing the British mother’s parent-child relationship to her daughter in Bulgaria.

The Court, however, did not believe that the threat of splitting the child in two should have been the way to reach a fair compromise, quite the contrary.

Firstly, the Court claims that the referring court alone has jurisdiction in this matter, so the CJEU’s ruling will consider that S.D.K.A. has Bulgarian nationality by birth due to the Bulgarian constitution.

Secondly, the Court clarifies, the daughter - in her capacity as a Union citizen - can rely on the rights pertaining to Union citizenship, including Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) also against her Member State of origin and even she was born in another Member State and has never travelled to her State of origin.

Thirdly, since every citizen of the Union has the right to move and reside freely within the territory of the Member States, Article 4(3) of Directive 2004/38/EC (the ‘Freedom of movement’ Directive) requires Member States to issue their nationals identity documents and, the Court clarifies ‘this document has to be issued regardless a of whether a new [Bulgarian] birth certificate is drawn up’.

Fourthly, such identity document must enable the daughter to move and reside freely within the territory of the Member States with each of her two mothers.

Lastly, since Article 21(1) TFEU includes the right to lead a normal family life with ones’ family members and the Spanish authorities have lawfully established the parent-child relationship between S.D.K.A and her two parents all Member States have to recognize V.M.A and K.D.K as having the right to accompany that child within the territory of Member States when exercising her freedom of movement. Whether one of the mothers gave birth to the daughter or whether her parents are biological or legal does not seem to be of interest to the Court: the fact that one Member States has recognised them as parents is sufficient to require all other Member States to mutually recognize this birth certificate for the purpose of freedom of movement. In practical terms also the same-sex parents of a child are entitled to a document which mentions them as being entitled to travel with their child: this document can be drawn up also by the host Member State and may be a birth certificate (like the present case).

The fragile balance between national identity, public policy and fundamental rights, including the right to respect for family life

The Court proceeds with analysing whether Article 4(2) of the Treaty on European Union (‘TEU’) protecting Member States’ national identity could serve as a justification for the Bulgarian authorities’ refusal to issue a birth certificate and an identity document to S.D.K.A.

Building on the Coman case, the Court recalls that the concept of public policy as a ‘justification for a derogation from a fundamental freedom must be interpreted strictly’. Recognizing the parent-child relationship between the child and each of her parents in the context of the child’s exercise of her rights under Article 21 TFEU does not undermine the national identity or pose a threat to the public policy of that Member State (which is thus still free to decide whether or not to allow same-sex marriage and parenthood under its national law).

The reverse of the medal is that ‘a national measure that is liable to obstruct the exercise of freedom of movement of persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter’ and, the Court finds, Bulgaria’s “judgment of Solomon”-style proposals would be contrary to several fundamental rights of each mother and their daughter. For instance, the right to respect for private and family life, guaranteed by Articles 7 Charter of Fundamental Rights of the European Union (the Charter) and 8 of the European Convention on Human Rights (ECHR) and following the case-law of the European Court of Human Rights (ECtHR) and the CJEU, cover both the mutual enjoyment by parent and child of each other’s company and the relationship of same-sex couples.

The right to have the best interests of the child taken into account, guaranteed by article 24 of the Charter translates also in obligations for Member States deriving from the UN Convention on the Right of the Child not to discriminate the latter (Article 2) including on the basis of the sexual orientation of the child’s parents when registering their name and nationality (Article 7).

Interestingly, with regards to the need to take due account to the provisions of the Convention on the rights of the Child when interpreting article 24 of the Charter, the Court refers to its previous M.A.v État belge ruling. With regards to the return of irregularly staying third country nationals, the Court has ruled twice in the past 18 months that family unity must be taken into account before adopting a return decision, even where the person to whom the return decision is addressed is not a minor but their father. The M.A.v État belge ruling concerned a father who was considered a threat to public order due to having committed  several offences whereas the LM v Centre public d’action sociale de Seraing ruling concerned a father who was unable to meet his or his adult seriously-ill daughter’s needs without receiving social assistance. In both cases the Court found that the need to protect the family life of these children under Articles 5 (a) and 14 (1) (a) of Directive 2008/115/EC (the ‘Returns’ Directive) overrode the State’s prerogative to return their fathers.

Lastly, these rights would risk being violated also whether S.D.K.A did not have Bulgarian nationality. In that case, both her and her mother K.D.K would fall under the definition of ‘spouse’ and ‘direct descendant’ within the meaning of article 2 of Directive 2004/38/EC due to the fact that V.M.A is a Union citizen and is therefore also protected by Article 21(1) TFEU.

The finding by the Court that the definition of ‘direct descendant’ covers the child of a same-sex couple will likely extend to the right to family reunification of third country nationals currently provided by several EU instruments. For instance, various directives concerning certain types of workers from third countries (researchers, highly skilled workers, workers in the field of intra-corporate transfers) refer to the definition of family pursuant to art. 4 par. 1 of Directive 2003/86/EC (the ‘Family Reunification’ Directive) and allow Member States to recognize more favourable provisions with respect to family reunification. As Directive 2003/86/EC includes in its list of family members the ‘spouse’ and ‘minor children’ of the applicant, by analogy, same-sex migrant couples with or without children should benefit from these provisions.

According to various reports (EMN) a dozen Member States currently allow same-sex couples to apply for family reunification and several Member States extend this right also to highly qualified workers (ICF) and to workers in the context of intra-corporate transfers.

Implementation of the rights recognized by the present case

The impact this ruling will have on the day-to-day life of this family is unclear at this stage.

Firstly, there is no exhaustive list of the ‘rights under Article 21 TFEU and secondary legislation relating thereto’ to which S.D.K.A has a right to nor a precise definition of the rights that the “right to lead a normal family life” under Article 21 (1) TFEU would entail. The AG clarifies that, since the definition of ‘direct descendant’ under Directive 2004/38/EC must also be adopted with regard to the concept of the ‘family members’ of a migrant worker for the purposes of Regulation 492/2011/EU (the ‘freedom of movement for workers’ Regulation) S.D.K.A may claim, for example the social and tax advantages associated with V.M.A. By the same reasoning, said Regulation could also cover her admission to that Member State’s general educational, apprenticeship and vocational training courses according to Professor Steve Peers.

Secondly, unfortunately, neither the Court nor the AG elaborate on which parental rights K.D.K is entitled to as a non-EU citizen but as the ‘spouse’ of one. The AG notes that preventing K.D.K  from being recognized as a parent would exclude her from “all the parental duties requiring proof of parental status […], medical decisions or any type of administrative procedure on behalf of the child”. Indeed, the fundamental rights granted by the European Union on many of these issues could vary greatly depending on whether they fall partially inside or outside of the EU’s competences.

(For instance, as the EP Parliament’s study points out, if the legal parent that dies, ‘the child becomes an orphan and it is then up to the family of the legally recognised parent or, in the absence of that, the State, to determine whether the non-recognised parent will even be allowed to maintain links with the child or, ideally, be recognised as the child’s parent. The child, also, does not have any (legal) ties with the family of origin of the parent who is not legally recognised as a parent. Hence, the failure to legally recognise the parent-child relationship creates uncertainty and, with it, insecurity both for the parents and the child as it, in effect, denies their relationship’.)

Her rights as a ‘spouse’ of an EU citizen are also limited. As the EP study found with regards to the implementation of the Coman case: ‘the CJEU does not yet require [the Member State of origin] to recognise a same-sex married couple […] for instance in relation to family, tax, social security, pensions, inheritance, citizenship/nationality, and medical law, e.g. hospital visitation and consultation’.

Finally, as noted by ILGA’s Head of Litigation Arpi Avetisyan: ‘implementation is the crucial part, which often is also the difficult and time-consuming one.  […] In practice the referring court in Bulgaria will have to apply the CJEU judgment and the family will continue the process in Bulgaria. It can also mean further litigation, as it happened in the Coman case […], however in short – if Bulgaria or other countries that don’t recognise same-sex unions refuse to implement the CJEU judgment, the European Commission can take legal action – namely infringement procedures. Just to reiterate, the Court specifically mentioned that MS cannot rely on protection of national identity (i.e. non-recognition of same-sex unions) to refuse the child and her family their rights to free movement’. 

Conclusions

This landmark ruling fills a series of gaps with regards to LGBTIQ* rights, freedom of movement and the protection of ‘family life’ and will likely serve as inspiration for the Commission’s upcoming proposal for a horizontal legislative initiative to support the mutual recognition of parenthood between Member States announced in its LGBTIQ Equality Strategy 2020-2025 the 12 November 2020.

According to the EP Study, said Commission proposal could go even beyond the present ruling and ‘on the legal bases of Articles 18, 21(2), 46, 50(1), and 59(1) TFEU, require[e] all Member States to recognise, for all purposes of national law […] the adults mentioned in a birth certificate issued in another Member State as the legal parents of the child mentioned in that birth certificate, regardless of the sexes or the marital status of the adults’.

This, the EP Study believes, ‘will ensure that when a rainbow family moves, the familial ties among the members of the family – as legally established and reflected in a birth certificate issued by another Member State – will automatically be recognised in the host Member State for all purposes of national law (including family reunification under Directive 2004/38)’.

It’s important to note that, with regards to issues of cross-border mobility relating to gender identity, the Court has not yet had the opportunity to rule on the rights of parental couples where one or both parents are transgender or non-binary. A 2020 report from Transgender Europe (Karsay) notes that - in addition to the obstacles discussed above - these couples suffer from additional obstacles to freedom of movement and recognition of parental bond. For example, the absence or bureaucratic complexity of the legal procedures for gender recognition can also preclude the recognition of marriage, the birth certificate and the filiation relationship between parents and children.

It is also worth recalling that several interesting cases concerning the cross-border recognition of LGBTIQ* couples and families are still pending before the CJEU and the ECtHR.

With regards to the legal recognition of the right to marry of same-sex couples, three appeals have been registered before the ECtHR, two against Poland (1, 2), the other against Romania. The first two cases concern same-sex couples to whom the Polish authorities refused to register their marriage (celebrated abroad), thus depriving them of the rights normally recognized to married couples in Poland. The third case is an appeal presented by the Coman-Hamilton couple, applicants of the CJEU Coman ruling referred to above. With this appeal currently pending, the couple considers the protracted refusal of the Romanian authorities to recognize their marriage and its legal effects as a violation of the right to marry (Article 12 of the ECHR) and discrimination due to sexual orientation (Article 14) read in conjunction with articles 6, par. 1, 8, 12 and 13 of the ECHR).

With regard to the rights of same-parent couples in cross-border situations, the ECtHR will be called upon to rule on the case of a couple challenging Poland for the non-recognition of the civil union and the birth certificate of the child born in England (NELFA).  

Photo credit: Bjoertvedt, via wikicommons 

A democratic alternative to the Digital Services Act's handshake between States and online platforms to tackle disinformation

 

 

By Paul De Hert* and Andrés Chomczyk Penedo**

 

* Professor at Vrije Universiteit Brussel (Belgium) and associate professor at Tilburg University (The Netherlands)

** PhD Researcher at the Law, Science, Technology and Society Research Group, Vrije Universiteit Brussel (Belgium). Marie Skłodowska-Curie fellow at the PROTECT ITN. The author has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 813497

 

 

 

1. Dealing with online misinformation: who is in charge?

 

Misinformation and fake news are raising concerns for the digital age, as discussed by Irene Khan, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (see here). For example, during the last two years, the COVID19 crisis caught the world by surprise and considerable discussions about the best course of action to deal with the pandemic were held. In this respect, different stakeholders spoke up but not all of them were given the same possibilities to express their opinion. Online platforms, but also traditional media, played a key role in managing this debate, particularly using automated means (see here).

 

A climate of polarization developed, in particular on the issue of vaccination but also around other policies such as vaccination passports, self-tests, treatment of the virus in general, or whether the health system should focus on ensuring immunity through all available strategies (see here). Facebook, YouTube, and LinkedIn, just to name a few, stepped in and started delaying or censoring posts that in one way or another were perceived as harmful to governmental strategies (see here). While the whole COVID19 crisis deserves a separate discussion, it serves as an example of how digital platforms are, de facto, in charge of managing online freedom of expression and, from a practical point of view, have the final say in what is permissible or not in an online environment.

 

The term 'content’ has been paired with adjectives such as clearly illegal, illegal and harmful, or legal but harmful, just to name the most relevant ones. However, what does exactly each of these categories entail, and why are we discussing these categories? What should be the legal response, if any, to a particular piece of content and who should address it? While content and its moderation is not a new phenomenon, as Irene Khan points in her previously mentioned report, technological developments, such as the emergence and consolidation of platforms, demand new responses.

 

With this background, the European Union is currently discussing at a surprisingly, very quick speed the legal framework for this issue through the Digital Services Act (the DSA, previously summarised here). The purpose of this contribution is to explore how misinformation and other categories of questionable content are tackled in the DSA and to highlight the option taken in the DSA to transfer government-like powers (of censorship) to the private sector. A more democratic alternative is sketched. A first one is based on the distinction between manifestly illegal content and merely illegal content to distribute better the workload between private and public enforcement of norms. A second alternative consists in community-based content moderation as an alternative or complementary strategy next to platform-based content moderation

 

 

2. What is the DSA?

 

The DSA (see here for the full text of the proposal and here for its current legislative status) is one of the core proposals in the Commission’s 2019-2024 priorities, alongside the Digital Markets Act (discussed here), its regulatory ‘sibling’. It intends to refresh the rules provided for in the eCommerce Directive and deal with certain platform economy-related issues under a common European Union framework. It covers topics such as: intermediary service providers liability - building up from the eCommerce Directive regime and expanding it -, due diligence obligations for a transparent and safe online environment -including notice and takedown mechanisms, internal complaint-handling systems, traders traceability, and advertising practices-, risk management obligations for very large online platforms and the distribution of duties between the European Commission and the Member States. Many of the these topics might demand further regulatory efforts beyond the scope of the DSA, such as political advertisement which would be complemented by sector-specific rules as, for example, the proposal for a Regulation on the Transparency and Targeting of Political Advertising (see here).

 

As of late November 2021, the Council has adopted a general approach to the Commission’s proposal (see here) while the European Parliament is still dealing with the discussion of possible amendments and changes to that text (see here). Nevertheless, as with many other recent pieces of legislation (see here), it is expected that its adoption is sooner rather than later in the upcoming months.

 

3. Unpacking Mis/Disinformation (part1): illegal content as defined by Member States

 

We started by discussing misinformation and fake news. If we look at the DSA proposal, the term 'fake news' is missing in all its sections. However, the concept of misinformation appears as disinformation in Recitals 63, 68, 69, and 71. Nevertheless, both terms are nowhere to be found in the Articles of the DSA proposal.

 

In literature, the terms are used interchangeably or are distinguished, with disinformation defined as the intentional and purposive spread of misleading information, and misinformation as ‘unintentional behaviors that inadvertently mislead’ (see here). But that distinction does not help in recognizing either mis- or disinformation, from other categories of content.

 

Ó Fathaigh, Helberger, and Appelman (see here) have pointed that disinformation, in particular, is a complex concept to tackle and that very few scholars have tried to unpack its meaning. Despite the different policy and scholarly efforts, a single unified definition of mis- or disinformation is still lacking, and the existing ones can be considered as too vague and uncertain to be used as legal definitions. So, where shall we start looking at these issues? A starting point, so we think, is the notion of content moderation, which according to the DSA proposal, is defined as follows:

 

'content moderation' means the activities undertaken by providers of intermediary services aimed at detecting, identifying, and addressing illegal content or information incompatible with their terms and conditions, provided by recipients of the service, including measures taken that affect the availability, visibility, and accessibility of that illegal content or that information, such as demotion, disabling of access to, or removal thereof, or the recipients' ability to provide that information, such as the termination or suspension of a recipient's account (we underline);

 

Under this definition, content moderation is an activity that is delegated to providers of intermediary services, particularly online platforms, and very large online platforms. Turning to the object of the moderation, we can ask what is exactly being moderated under the DSA? As mentioned above, moderated content is usually associated with certain adjectives, particularly illegal and harmful. The DSA proposal only defines illegal content:

 

‘illegal content’ means any information, which, in itself or by its reference to an activity, including the sale of products or provision of services is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law;

 

So far, this definition should not provide much of a challenge. If the law considers something as, it makes sense that it is similarly addressed in the online environment as in the physical realm. For example, a pair of fake sneakers constitute a trademark infringement, regardless of if the pair is being sold via eBay or by a street vendor in Madrid’s Puerta del Sol. In legal practice, regulating illegal content is not black and white. A distinction can be made between clearly illegal content and situations where further exploration must be conducted to determine the illegality of certain content. This is how it is framed in the German NetzDG, for example. In some of the DSA proposal articles, mainly Art. 20, we can see the distinction between manifestly illegal content and illegal content. However, this distinction is not picked up again in the rest of the DSA proposal.

 

What stands is that the DSA proposal does not expressly cover disinformation but concentrates on the notion of illegal content. If Member State law defines and prohibit mis- or disinformation -which Ó Fathaigh, Helberger and Appelman have reviewed and found to be inconsistent across the EU- , then this would fall under the DSA category of illegal content. Rather than creating legal certainty, this further reinforces legal uncertainty and pegs the notion of illegal content to be dependent on each Member State's provisions. But where does this leave disinformation that is not regulated in in Member State laws? The DSA does not like it, but its regulation is quasi hidden.

 

 

4. Unpacking Mis/Disinformation (part2): harmful content non defined by the DSA

 

The foregoing brings us to the other main concept dealing with content in the DSA, viz. harmful content. To say that this is a (second) 'main' concept might confuse the reader, since the DSA does not define it or regulate it at great lengths.  The DSA’s explanatory memorandum states that `[t]here is a general agreement among stakeholders that ‘harmful’ (yet not, or at least not necessarily, illegal) content should not be defined in the Digital Services Act and should not be subject to removal obligations, as this is a delicate area with severe implications for the protection of freedom of expression’.

 

As such, how can we define harmful content? This question is not new by any means as we can trace back policy documents from the European Union dating back to 1996 (see here) dealing with this problem. Since then, little has changed in the debate surrounding harmful content as the core idea remains untouched: harmful content refers to something that, depending on the context, could affect somebody due to it being unethical or controversial (see here).

 

In this respect, the discussion on this kind of content does not tackle a legal problem but rather an ethical, political, or religious one. As such, it is a valid question to be asked if laws and regulations should even mingle in this scenario. In other words, does it make sense to talk about legal but harmful content when we discuss new regulations? Should our understanding of illegal and harmful content be construed in the most generous way to accommodate for the most amount of situations possible to avoid this issue? And more importantly, if the content seems to be legal, does it make sense to add the adjective of ‘harmful’ rather than using, for example, ‘controversial’? Regardless of the terminology used, this situation leaves us with three types of content categories: (i) manifestly illegal content; (ii) illegal, both harmful and not, content; (iii) legal but harmful content. Each of them demands a different approach, which shall be the topic of our following sections.

 

 

5. Illegal content moderation mechanisms in the DSA (content type 1 & 2)

 

The DSA puts forward a clear, but complex, regime for dealing with all kinds of illegal content. As a starting point, the DSA proposal provides for a general no monitoring regime for all intermediary service providers (Art. 7) with particular conditions for mere conduits (Art. 3), caching (Art. 4), and hosting service providers (Art. 5). However, voluntary own-initiative investigations are allowed and do not compromise this liability exemption regime (Art. 6). In any case, once a judicial or administrative order mandates the removal of content, this order has to be followed to avoid incurring liability (Art. 8). In principle, public bodies (administrative agencies and judges) have control over what is illegal and when something should be taken down.

 

However, beyond this general regime, there are certain stakeholder-specific obligations spread out across the DSA proposal also dealing with illegal content that challenge the foregoing state-controlled mechanism. In this respect, we can point out the mandatory notice and takedown procedure for hosting providers with a fast lane for trusted flaggers notices (Arts. 14 and 19, respectively), in addition to the internal complaint-handling system for online platforms paired with the out-of-court dispute settlement (Arts. 17 and 18, respectively) and, in the case of very large online platforms, these duties should be adopted following a risk assessment process (Art. 25). With these set of provisions, the DSA grants a considerable margin to certain entities to act as law enforcers and judges, without a government body having a say in if something was illegal and its removal was a correct decision.

 

6. Legal but harmful content moderation mechanisms in the DSA (content type 3)

 

But what about our third type of content, legal but harmful content, and its moderation? Without dealing with the issue of content moderation directly, the DSA transfers the delimitation of this concept to providers of online intermediary services, mainly online platforms. In other words, a private company can limit apparently free speech within its boundaries. In this respect, the DSA proposal grants all providers of intermediary services the possibility of further limiting what content can be uploaded and how it shall be governed via the platform’s terms and conditions and, by doing so, these digital services providers are granted substantial power in regulating digital behavior as they see fit:

 

‘Article 12 Terms and conditions

 

1. Providers of intermediary services shall include information on any restrictions that they impose concerning the use of their service in respect of information provided by the recipients of the service, in their terms and conditions. That information shall include information on any policies, procedures, measures, and tools used for content moderation, including algorithmic decision-making and human review. It shall be set out in clear and unambiguous language and shall be publicly available in an easily accessible format.

 

2. Providers of intermediary services shall act in a diligent, objective, and proportionate manner in applying and enforcing the restrictions referred to in paragraph 1, with due regard to the rights and legitimate interests of all parties involved, including the applicable fundamental rights of the recipients of the service as enshrined in the Charter.’

 

In this respect, the DSA consolidates a content moderation model heavily based around providers of intermediary services, and in particular, very large online platforms, acting as lawmakers, law enforcers, and judges at the same time. They are lawmakers as the terms and conditions lay down what is permitted as well as forbidden in the platform. While there isn't a general obligation to patrol the platform, they must react to notices from users and trusted flaggers and enforce the terms if necessary. And, finally, they act as judges by attending to the replies from the user who uploaded illegal content and dealing with the parties involved in the dispute, notwithstanding the alternative means provided for in the DSA.

 

Rather than using the distinction between manifestly illegal content and ordinary illegal content and refraining from regulating other types of content, the DSA creates a governance model for moderation of all content in the same manner. While administrative agencies and judges can request content to be taken down, under Art. 8, the development of the further obligations mentioned above poses the following question: who is the main responsible to define what is illegal and what is legal? Are the existing institutions subject to checks and balances or rather private parties, particularly BigTech and very large online platforms?

 

 

7. The privatization of content moderation: the second (convenient?) invisible handshake between the States and platforms

 

As seen with many other areas of the law, policymakers and regulators have slowly but steadily transferred government-like responsibilities into the private sector and mandated their compliance relying on a risk-based approach. For example, in the case of financial services, banks, and other financial services providers have turned into the long arm of financial regulators to tackle money laundering and tax evasion rather than relying on government resources to do this. This resulted in financial services firms having to process vast amounts of personal data to determine whether a transaction is illegal (either because it is laundering criminal proceedings or avoiding taxes) with nothing but their planning and some general guidelines; if they fail in this endeavor administrative fines (and in some cases, criminal sanctions) can be expected. The result has been an ineffective system to tackle this problem (see here) yet regulators keep on insisting on this approach.

 

A little shy of 20 years ago, Birnhack and Elkin denounced the existence of an invisible handshake between States and platforms for the protection and sake of national security after the 9/11 terror attacks (see here). At that time, this invisible handshake could be considered by some as necessary to deal with an international security crisis. Are we in the same situation as we speak when it comes to dealing with disinformation and fake news? This is a valid question. The EU policy makers seems to be impressed by voices such as Facebook’s whistleblower Frances Haugen who wants to align 'technology and democracy' by enabling platforms to moderate post. The underlying assumption seems to be that platforms are in the best position to moderate content following supposedly clear rules and that 'disinformation' can be identified (see here).

 

Content moderation presents a challenge for States given the amount of content generated non-stop across different intermediary services, in particular, social media online platforms (see here). Facebook employs a sizable staff of almost 15,000 individuals as content moderators (see here) but also relies heavily on automated content moderation, authorized by the DSA proposal under Arts. 14 and 17, in particular, to mitigate mental health problems to those human moderators given the inhuman content they sometimes have to engage with. To put this in comparison, using the latest available numbers from the Council of Europe about the composition of judiciary systems in Europe (see here), the Belgian judiciary employs approximately 9200 individuals (-the entire judiciary dealing with issues about commercial law up to criminal cases-), a little more than half of Facebook’s content moderators.

 

As such, one can argue that courts could be easily overloaded with cases that demand a quick and agile solution for defining what is illegal or harmful content if platforms didn't act as a first-stage filter for content moderation. Governments would need to heavily invest in administrative or judicial infrastructure and human resources to deal with such demand from online users. This matter has been discussed by scholars (see here). The available options they see either (i) strengthening platform content moderation by requiring the adoption of judiciary-like governance schemes, such as social media councils as Facebook has done; or (ii) implementing e-courts with adequate resources and procedures suited to the needs of the digital age to upscale our existing judiciary.

 

8. The consequences of the second invisible handshake

 

The DSA seems to have, willingly or not, decided on the first approach. Via this approach, -the privatization of content moderation-, States do not have to deal with the lack of judicial infrastructure to deal with the amount of content moderation that digital society requires. As shown by our example, Facebook has an infrastructure, just on raw manpower available, that doubles that of a country’s judiciary, such as Belgium. This second invisible handshake between BigTech and States can be situated in the incapacity of States to deal with disinformation effectively with the current legal framework and institutions.

 

If the DSA proposal is adopted ‘as is’, then platforms would have a significant power over individuals. First, through the terms and conditions, they would in position to determine what is allowed to be said and what cannot be discussed, as provided for by Art. 12. Not only that but also any redress before decisions adopted by platforms would have to be first channeled through the internal complaint handling mechanisms, as provided for by Arts. 17 and 18, for example, rather than seeking judicial remedy. As it can be appreciated, the power scale has clearly shifted towards platforms, and by extension to governments, in detriment of end-users.

 

Besides this, the transfer of government-like powers to platforms contributes to avoiding making complicated and hard decisions that could cost political reputation. Returning to our opening example, the lack of a concrete decision from our governments regarding sensitive topics has left platforms in charge of choosing what is the best course of action to tackle a worldwide pandemic by defining when something is misinformation that can affect the public health and when something could help fight back something that is out of control. Not only that but if platforms wrongfully approach the issue, then they are exposed to fines for non-compliance with their obligations, although particularly very large online platforms can deal with the fines proposed under the DSA.

 

If the second invisible handshake is going to take place, the least we, as a society, deserve is that agreement is made transparent so that public scrutiny can oversight such practices and free speech can be safeguarded. In this respect, the DSA could have addressed the issue of misinformation and fake news in a more democratic manner. Two proposals:

 

 

9. Addressing disinformation more democratically to align 'technology and democracy'

 

Firstly, the distinction between manifestly illegal content and merely illegal content could have been extremely helpful in distributing the workload between the private and public sector in a manner that administrative authorities and judges would only take care of cases where authoritative legal interpretation is necessary. As such, manifestly illegal content, such as apology to crime or intellectual property infringements, could be handled directly by platforms and merely illegal content by courts or administrative agencies. In this respect, a clear modernization in legal procedures to deal with claims about merely illegal content would still be necessary to adjust the legal response time to the speed of our digital society. Content moderation is not alone in this respect but joins the ranks of other mass-related issues, such as consumer protection, where effective legal protection is missing due to the lack of adequate infrastructure to channel complaints.

 

Secondly, as for legal but harmful content, while providers of online intermediary services have a right to conduct their business as to how they see fit and therefore can select which content is allowed or not via terms and conditions, citizens do have a valid right to engage directly in the discussion of those topics and determine how to proceed with them. This is even more important as users themselves are the ones interacting on these platforms and that content is exploited by platforms to ensure that controversy remains on the table to ensure engagement (see here).

 

However, there is a possibility to deal with content moderation, particularly in the case of legal but harmful content, that avoids a second invisible handshake: community-based content moderation strategies (see here) where users have a more active role in the management of online content has proven to be successful in certain online platforms. While categories such as clearly illegal or illegal and harmful content do not provide much margin for societal interpretation, legal but harmful content could be tackled by citizens' involvement. In this respect, community-based approaches, while resource-intensive, allow for citizens to engage directly in the debate about the issue at hand.

 

While community-based content moderation also has its own risks, it could serve as a more democratic method than relying on platforms’ unilateral decisions and it might serve where judges and administrative agencies cannot go due to the legality of content. As noted by the Office of the United Nations High Commissioner for Human Rights, people, rather than technology, should be making the hard decisions but also States, as elective representatives of society, need to make decisions about what is illegal and what is legal (see here).

 

Our alternatives are only a part of a more complete program. Further work is needed at policy level to address fake news. Sadly, as it may be, the matter is not matured yet and ripe for regulation. While the phenomena of political actors actively spreading misleading information (the twittering lies told by political leaders) are well-known and discussed, the role of traditional news media, who are supposed to be the bearers of truth and factual accuracy, is less well understood. Traditional news media are in fact a part of the problem, and play a somewhat paradoxical role with respect to fake news and its dissemination. People learn about fake news, not via obscure accounts that Facebook and others can control, but through regular media that find it important for many reasons to report on disinformation. Tsfatie and others (see here) rightly ask for more analysis and collaborations between academics and journalists to develop better practices in this area.

 

We are also surprised by the lack of attention in the DSA proposal to the algorithmic and technological dimension that seems central to the issue of fake news. More work is needed on the consequences of algorithmic production of online content. More work too is needed to assess the performance of technological answers to technology.  How to organize a space of contestation in a digitally mediated and enforced world? Are the redress mechanisms in the DSA sufficient when the post has already been deleted, i.e. "delete first rectify after"?

 

Art credit: Frederick Burr Opper, via wikimedia commons