The groups argue that without tighter safeguards, the system risks incentivizing the over-removal of lawful speech and compromising due process across EU digital platforms.
The Architecture of Over-Blocking: Why Trusted Flagger Status Matters
At its core, the DSA’s trusted flagger mechanism is designed to expedite the removal of illegal content by prioritizing notices from entities with proven expertise.
The groups warn that if implemented poorly, the system could encourage the over-removal of lawful speech, weaken due process, and give government authorities disproportionate influence over online expression.
Decoupling Enforcement from Jurisdictional Ambiguity
One of the most critical points in the EFF/ARTICLE 19 submission is the insistence that the DSA does not—and cannot—define “illegal content.” That definition remains anchored in national and EU law. The technical challenge for platforms is that a post deemed illegal in one jurisdiction may be protected speech in another.
Platforms must avoid a “global block” approach. Relying on a trusted flagger notice from a single Member State to trigger a cross-border removal is a fundamental flaw in logic. It fails to account for the heterogeneous legal frameworks across the EU.
Beyond Content: The Systemic Risk of Algorithmic Recommender Systems
The submission correctly identifies that the DSA’s systemic risk framework is currently too narrow. It argues that the framework should not rely too heavily on individual moderation decisions, but should also consider broader platform design choices, including recommender systems.
The Law Enforcement Paradox
The proposal to exclude law enforcement from the “trusted flagger” category is a necessary firewall. Law enforcement agencies already possess statutory powers under Article 9 of the DSA to issue specific removal orders. Granting them “trusted flagger” status creates a redundant—and dangerous—channel.
When police entities act as trusted flaggers, the distinction between a “request” and an “order” vanishes. Platforms, fearing the regulatory weight of the DSA, will almost certainly treat such requests as mandatory. This effectively bypasses the court-supervised processes that are meant to act as a check on executive power.
The 30-Second Verdict
- The Core Conflict: Efficiency vs. Due Process. The trusted flagger system risks turning specialized reporting into a high-speed pipeline for mass removal.
- Technical Reality: Platforms must implement localized assessment logic. A flag from one Member State must not automatically trigger a block across the entire EU.
- The Missing Link: The guidelines must address the role of recommender systems in systemic risk, rather than focusing solely on individual moderation decisions.
- The Bottom Line: Trusted flagger status should be reserved for independent, non-governmental actors. Law enforcement has its own lane; it shouldn’t be allowed to merge into the trusted flagger lane.
The EFF and ARTICLE 19 have provided a necessary, if difficult, roadmap for a more transparent and legally sound implementation of the DSA.
