Is the Digital Services Act Here to Protect Users? Platform Regulation and European Single Market Integration

Abstract

The regulation of social media platforms continues to be a hotly debated issue in policy and academic circles. In these discussions, the Digital Services Act (DSA) is widely seen as a major piece of an architecture under construction. However, much of the current academic discussion focuses on the content of its new rules and their implementation, with very little work examining the context in which the DSA was passed. This paper explores this context by focusing on the strategic litigation by social media platforms against the Austrian Communication Platforms Act, a member state law adopted during the transition period from the E-Commerce Directive (ECD) to the DSA. The paper's case study shows how social media platforms successfully used EU internal market principles to challenge the Austrian law, paradoxically aligning their interests with the European Commission's goal of preventing legal fragmentation within the EU. This highlights an alliance between corporate interests and the EU regulatory framework and raises questions about the objectives of the DSA. The paper argues that it is important to challenge the narrative that the DSA represents a radical shift towards user protection in the digital sphere. Indeed, the Austrian case study shows how the ECD has been constructed in a way that is very favourable to companies. It is therefore doubtful whether the new compliance-based regulatory tools of the DSA, which are supposed to ensure user protection, can be effective forms of counter-power, given that the dominant paradigm of the ECD, which favours corporate interests, has largely been retained in the DSA.