EFF and ARTICLE 19 Submission to the European Commission on the DSA Trusted Flagger Guidelines

The Electronic Frontier Foundation (EFF) and ARTICLE 19 have jointly submitted comments to the European Commission regarding the draft guidelines for the Digital Services Act’s (DSA) trusted flagger mechanism. The submission aims to ensure the guidelines align with the DSA’s core objectives of protecting freedom of expression while maintaining intermediary liability protections and avoiding general monitoring obligations.

The DSA’s trusted flagger system is designed to help online platforms identify and address illegal content more efficiently. However, concerns have been raised that poorly implemented guidelines could lead to excessive removal of lawful speech, undermine due process, and grant disproportionate influence to government authorities over online expression. The EFF and ARTICLE 19 emphasize the need for clear safeguards to preserve these fundamental rights.

The organizations support the Commission’s approach of focusing on good practices and illustrative examples rather than legal interpretations that might steer platforms toward specific enforcement outcomes. They argue that the guidelines should include stronger protections for freedom of expression, due process, and the impartiality of trusted flaggers.

A key concern addressed in the submission is the definition of "illegal content." The DSA itself does not prescribe a definition; instead, it relies on applicable national or EU law. The submission clarifies that trusted flaggers submit prioritized notices, but platforms remain responsible for determining whether content is actually illegal. Platforms must conduct thorough assessments and avoid automatically removing content based solely on a trusted flagger notice.

The EFF and ARTICLE 19’s submission outlines several areas where the guidelines could be strengthened to better safeguard users’ rights. The full submission is available for review on the EFF’s website.

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