European Commission's Roundtable with Civil Society Organizations: a Welcome Step, Yet Calling for a Formal Forum

On February 7th 2024, the European Commission hosted an online roundtable with CSOs (Civil Society Organizations). Why is it a step in the right direction and why shouldn't it be the only one?

Ten days before the Digital Services Act (DSA) became applicable for all intermediary services, the European Commission's team working on its implementation and enforcement organized a roundtable with many CSOs. According to the Commission's news article, the roundtable had three main objectives:

• First, the aim was to provide CSOs with an “update on the Commission's DSA enforcement activities”.
• Second, DG Connect, the directorate-general mainly responsible for enforcing key parts of the DSA, provided more information about a public consultation related to the draft guidelines on mitigation of systemic risks for electoral processes (opened until 7 March 2024).
• Third, the Commission wanted to receive information about “ongoing and planned activities of their respective organisations”.

Organizing convenings like this roundtable or the DSA Stakeholder Event held in June 2023 are definitely steps in the right direction to establish a constructive dialogue between the DG Connect and CSOs. However, such irregular events are unlikely to be enough to ensure a fruitful and long-lasting relationship of trust between the European regulator and civil society.

Why Should the Commission Actively Work With Civil Society Organizations?

As Rita Wezenbeek (Director Platforms, DG Connect) pointed out publicly at another event in February 2024, there is a real change of paradigm under the DSA. For the Commission, it is almost unprecedented to be in charge of monitoring and enforcing a regulation. To respond to this change, the institution has been building up its teams and developing its expertise. As Rita Wezenbeek underlined, the Commission will also need evidence from the ground to properly tackle its new missions. To do so, the Commission can rely on external expertise, including by developing cooperation frameworks with researchers, associations, as well as international organizations that can provide evidence-based recommendations to the regulators and bring up the voice of people whose rights have not been respected by online intermediaries.
In that sense, the DSA provides a great opportunity to create a fruitful and ambitious dialogue, or even operational collaboration, between various stakeholders. Many of its provisions unambiguously refer to these potential cooperation mechanisms. Nevertheless, organizing a roundtable with CSOs twice a year, with an almost unilaterally prepared agenda, will not suffice to build such cooperation.

The Importance of Transparency

A recent report, Putting collective intelligence to the enforcement of the Digital Services Act, underlined the many ways to build strong cooperation settings between regulators and CSOs. It also made concrete recommendations for the design of an efficient and influential expert group. This report emphasizes transparency as a key element to build trust not only for the participants of a group but also for the general public. Two important transparency mechanisms are lacking in the current process of cooperation: transparency regarding the invited organizations and transparency of the work.

Transparency Regarding the Invited Organizations

Transparency is particularly important when deciding who should be contributing to the discussion. Accordingly, selection and exclusion criteria should be openly and clearly defined in advance and, ideally, be open to public consultation. Why was an organization invited to contribute and why was another not? This process needs to be transparent not only for good information but also to achieve widespread consensus and trust in the work done. Two roundtables were organized and none provided a list of participants. The first one, organized in June 2023, gathered 19 participants. The second one, organized in February 2024, does not publicly state the number of contributors invited but reportedly gathered many more participants. Unfortunately, no public information is available on the chosen participants. Of course, one can always go through the tedious and lengthy process of requesting such information through a public document access request, but this type of information should be provided directly and be easily accessible.

Transparency in the Work

The European Union has stringent rules on transparency, particularly when external experts are involved. For instance, the rules on the creation and operation of Commission expert groups dedicate a full chapter to transparency. This is crucial to establish trust in the Commission's work from the general public but also to provide legitimacy to the work done during the meetings. Under the Commission's framework, documents of expert groups and sub-groups, including agendas, minutes and participants' submissions are made available to the public. This is the default setting.
Regrettably, transparency is not yet the path chosen by the DSA's team for its collaboration with CSOs.

Indeed, there is no sign of publication of the agendas, their minutes, or submissions. For the roundtable organized in June 2023, despite promising a publication of a “Chatham House report” shortly after the meeting, no document has been circulated on the dedicated page. This is regrettable for many reasons. First, the lack of transparency of the work combined with the shadowed invitation process leaves the non-invited organizations in the dark. Maybe the themes covered during the meetings were related to specific topics, justifying the specific invitation list? One can only wonder. Second, the lack of transparency might create suspicions from people working on these topics and hurt the legitimacy of the process of external collaboration.

In the future, if the Commission continues to organize similar events, it ought to be more transparent, with a minimum being the publishing of the list of participants, the agenda and the minutes or a report of the meeting should be made available.

The Devil is in the Details... The Importance of Thoughtful Design

Size Matters

As we learned from the DSA itself: size matters!
If the first roundtable organized by the Commission gathered a reasonable number of organizations (19), the second gathered many more (it appears around 50 organizations with circa 80 participants taking part). As recommended in the report Putting collective intelligence to the enforcement of the Digital Services Act, to be a good platform for debate a working-group should not be over-populated. This report, based on interviews and extensive research, suggested 30 members as the proper number of experts to involve. Such a size offers a diversity of views and makes participation easier for all parties involved. Going forward, the Commission might consider reducing the number of participants around specific topics for efficiency purposes with transparent selection criteria.

Iterative process

As it is well recognized, “the one holding the pen has far more influence than most other members of a committee”. Therefore, it is crucial to make sure all participants of the meetings can have their say in the organization, the agenda, background documents and report. Also, anticipation is a characteristic of good governance and is crucial for efficiency.

Regularity is key

Naturally, the frequency of the meetings is highly dependent on the objectives and missions of the group. The Commission recently opened two investigative procedures: one against X in December 2023 and the other one against TikTok in February 2024, showing important enforcement activities. Before opening these formal proceedings, the Commission had sent various requests for information to multiple platforms in Autumn. These requests are relating to numerous topics such as systemic risks, measures against the spreading of illegal content, protection of minors (Apple, Google, X, Meta, TikTok, YouTube, ...). In January 2024, the Commission sent a request for information on access to public data for researchers to all very large online services. Clearly, the Commission's team has been very active.
In parallel, the Commission is also in the process of developing delegated and implementing acts to help in the interpretation of the DSA. Two are already published (one relating to audits and another one relating to the procedures regarding the supervisory fees). Many more are expected, notably for the implementation of data access requests under article 40 of the DSA or on transparency reports.

The February roundtable was the occasion for the Commission to announce first hand a new public consultation related to the draft guidelines on mitigation of systemic risks for electoral processes. This is a sign of trust on the Commission's part (the consultation only opened the day after the meeting) which should be acknowledged.

Some uncertainty about the timing of the February roundtable still remains. Its organization on February 2024 might be explained by the desire of the Commission to reinstate a dialogue with CSOs following some informal requests from CSOs and a letter sent by 30 of them to Thierry Breton in October 2023 to which Commissioner Breton replied by promising a roundtable. If so, having a long-lasting structure, with recurring monthly meetings, would probably avoid such frustration from both sides. Moreover, it would help build a long-lasting dialogue. On the event page, DG Connect affirms that it “intends to host regular online exchanges with CSOs to discuss concrete topics of relevance to the DSA implementation”. Not a lot of details are provided on the format of these exchanges, except that they will be online. One option for the Commission is to continue to hold informal and sporadic meetings which, as pointed out by Julian Jaursch, is a “rather obvious and basic mode of engagement”. The second option is to take cooperation a step further and gather participants around a more formal and permanent forum. While CSOs have recognized the Commission's invitation as positive, many believe that a structured and formalized group is needed. This forum could take the form of an advisory body or an expert group. And on that, the report Putting Collective Intelligence to the Enforcement of the Digital Services Act provides many recommendations!

List of recommendations of the report “Putting Collective Intelligence to the Enforcement of the Digital Services Act. Report on possible collaborations between the European Commission and civil society organizations.”

All ideas and opinions expressed here are of the ones of the author.
For inspiring and thoughtful feedback on this post, the author would like to thank Antonin Decrulle, Julian Jaursch, Chantal Joris and Matti Schneider.