The Digital Services Act (DSA) came into effect for online intermediary service providers (ISP) on 17 February 2024, requiring intermediary service providers to comply with a host of obligations applicable to their services.
In the run-up to the DSA-deadline, we detailed the categories of ISPs that come within the scope of the DSA (here) and the applicable obligations on those within the DSA's remit (here).
One of the main goals of the DSA is to prevent illegal and harmful activities online and to tackle the spread of disinformation. As such, there are a number of obligations which ISPs must adhere to, in order to meet these aims. One such obligation is for online platforms to act quickly when notified of illegal content on their platform by a so-called "trusted flagger".
What are the "trusted flagger" related obligations for online platforms to "take down" content?
Article 16 of the DSA requires that providers of hosting services (i.e., a service provider which stores information provided by and at the request of a user) put mechanisms in place to allow any individual or entity to notify them of the presence of information on their service which the individual or entity considers to be illegal content. Where an ISP has received such a notice, Article 16 provides that the effect of this is that they have actual knowledge or awareness of its existence and as such may be liable for its content under the DSA.
Article 22 of the DSA further requires that providers of online platforms (i.e., a hosting service which, at the request of the user, stores and disseminates information to the public) must take the necessary technical and organisational measures to ensure that notices submitted by so-called trusted flaggers, acting within their area of expertise, are given priority, and are processed and decided upon without undue delay. ISPs must also include the number of notices submitted by trusted flaggers and any action taken pursuant to these notices in their transparency report, which they are required to be publish at least once year under Article 15 of the DSA.
Importantly, the recitals to the DSA acknowledge that the time to process these notices may vary depending on the type of illegal content, the quality of the notice submitted as well as the actual technical procedures put in place for submission of the notice. With respect to the removal of illegal hate speech however, Recital 62 of the DSA notes that Code of conduct on countering illegal hate speech online of 2016 sets a benchmark for the participating companies with respect to the time needed to process valid notifications. The code of conduct notes this as 24 hours for the majority of notifications.
Trusted flaggers are also relevant to the duties of very large online platforms (VLOP) and very large online search engines (VLOSE) to put in place reasonable, proportionate and effective measures to mitigate specific systemic risks which they have identified in their service. One such duty listed by the DSA includes the initiating or adjusting cooperation with trusted flaggers.
Finally, where an online platform has information indicating that a trusted flagger has submitted a significant number of insufficiently precise, inaccurate, or inadequately substantiated notices, it must inform the Digital Services Coordinator that awarded that trust flagger its status and provide them with the necessary explanations and supporting documents.
What is a trusted flagger?
Article 22(2) of the DSA provides that the Digital Services Coordinator of a Member State shall award the status of trusted flagger to an entity in that Member State that has demonstrated that it meets the following conditions:
(a) it has particular expertise and competence for the purposes
of detecting, identifying and notifying illegal content;
(b) it is independent from any provider of online platforms;
(c) it carries out its activities for the purposes of submitting
notices diligently, accurately and objectively.
Importantly, the DSA does not provide for an individual being a trusted flagger. Recital 61 of the DSA provides that trusted flaggers can be non-governmental organisations, private or semi-public bodies, as well as industry associations. It is intended however that to avoid diminishing the added value of the mechanism, the overall number of trusted flaggers should be limited.
Since the entering into force of the Digital Services Act,
Comisiún na Meán (the Digital Services Coordinator in
Ireland) has published guidance in relation to trusted flaggers.
The guidance provides the following list of entities which could
also be designated as a trusted flagger, in addition to those
envisaged by the DSA:
– Members of established fact-checkers networks;
– Trade unions; and
– Networks or alliances of entities, at national and European
levels.
Comisiún na Meán, in its guidance, also provides a list of areas of illegal content in relation to which entities can apply for trusted flagger status. This list has been developed at a European level to assist in a uniform application of the DSA and is set out below:
| Animal offences | Data protection and privacy violations | Illegal speech |
| Intellectual property and other commercial rights infringements | Negative effects on civic discourse or elections | Non-consensual behaviour |
| Online bullying/intimidation | Pornography or sexualized content | Offense to minors |
| Risk for public security | Scams and/or fraud | Incitement to self-harm |
| Illegal scope of access to the platform/content | Unsafe and/or illegal products | Violence |
Where an entity is appointed as a trusted flagger, it must publish
reports on the notices it has submitted to online platforms, at
least once a year, and containing information as to the identity of
the online platform, the type of alleged illegal content notified,
and the action taken by the online platform in response.
Conclusion
Trusted flaggers are intended to form a crucial part of the DSA's strategy to tackle illegal content online. While Comisiún na Meán has not yet announced any appointments of trusted flaggers in Ireland, a number of bodies are likely to seek designation. One such body is the Central Bank of Ireland, who earlier this month, confirmed its interest in designation as a trusted flagger so that it could attempt to combat fraud and financial scams online.
The obligations in relation to trusted flaggers only encompass a small part of the extensive rules set out by the DSA. If you are still unsure of your organisations commitments under this landmark piece of legislation, you might find helpful our free DSA scope analysis tool here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
