Toxic recommender algorithms: immunities, liabilities and the regulated self-regulation of the Digital Services Act and the Online Safety Act

This article critiques the apparently complementary nature of the intermediary immunities and the regulated self-regulation of the EU Digital Services Act 2022 [DSA] and the Online Safety Act 2023 [OSA]. Taking toxic recommender algorithms as the regulated target, the paper argues that while the DSA/OSA’s regulatory regimes purports to fill the regulatory vacuum created by the platform immunities granted in the early 2000s, they cannot compensate for the civil and criminal liability regimes foreclosed by them and are in fact undermined by their continuing presence. Whilst the DSA/OSA’s regulatory regimes recognise platforms as active participants in, and shapers of, the online content sphere, particularly through their recommender algorithms, the immunities remain stuck in the early view of the same platforms as passive providers of neutral infrastructure and thus as innocent messengers. Thus the immunities continue to allow platforms to adopt the toxic but profitable algorithms that the DSA/OSA seek to restrain. By the same token, statutory duties and administrative oversight can neither replace an individual’s right to redress nor the deliberative public engagement engendered by civil or criminal court cases. The article concludes that the tension between the two regimes may be resolved by restricting the immunities to truly neutral platforms, those not substantially invested in the content they are meant to regulate. For all other platforms the DSA/OSA self-regulatory regimes and standard liabilities could and should run in parallel.