Putting Meaningful Transparency at the Heart of the Digital Services Act

Why Data Access for Research Matters & How we can Make it Happen


30 October 2020


As organizations committed to upholding democratic values and fundamental rights, we see an urgent need to commit internet platforms to a higher level of transparency. We propose that EU should maintain the key principles of the limited liability regime outlined in the e-Commerce Directive, and introduce binding transparency frameworks that enable privacy-respecting access to data for scrutiny. We welcome the European Commission’s proposed Digital Services Act (DSA), and urge EU policymakers to use this “Modern Rulebook for Digital Services” in Europe as an opportunity to hold platforms to account.

Digital Society Deliberates Online – but we Know Little About the Gatekeepers

In the spring of 2020, AlgorithmWatch found clear indications that Instagram’s newsfeed algorithm was nudging female content creators to reveal more skin, by making semi-nude photos more visible in their followers’ feeds1. When we confronted Facebook, Instagram’s parent company, with our findings, they declined to answer our questions, and accused us of “misunderstanding how Instagram works.” They also rejected any requests to back up this statement with their own data, making it impossible to validate their claims. Instagram’s response to the AlgorithmWatch investigation is emblematic of a much deeper problem: content-hosting intermediaries2 rely on extremely intrusive data collection practices to power their opaque algorithmic systems, but when independent watchdogs try to understand the effects of these practices, data for public interest scrutiny is a scarce resource.

At the same time, as the COVID19 crisis has shown, algorithmically-driven communications intermediaries play a central and ever-expanding role in modern society. They are inextricably linked to how we coordinate remotely at school or work, how we find and consume information, and how we organize our social movements or exercise key democratic rights. Large parts of our media and communications infrastructure are governed by algorithmic systems, and we need better tools to understand how these systems are impacting our democracies.

The Stakes Are High — Shaping the Digital Information Ecosystem for the Future

Public authorities bound by fundamental rights cannot ban “low-quality” content or demand its suppression as long as it is legal3. This is a fundamental basis of freedom of expression and must not be undermined. Nevertheless, it is crucial to acknowledge that algorithmically-driven content curation, on social media platforms in particular, can introduce a host of risks that affect the functionality of communication processes necessary for democracy4.

From Germany’s Interstate Media Treaty to France’s Avia Law to the EU’s most recent proposal on preventing the dissemination of terrorist content online, previous approaches to tackling such risks have been overlapping, incoherent, or otherwise fragmented5.

The Digital Services Act (DSA), meant to overhaul the E-Commerce Directive, is an opportunity for a fresh slate. The limited liability framework outlined in the E-Commerce directive is the right approach to dealing with illegal user-generated content, but this framework must be enhanced and refined. Instead of introducing measures that oblige or encourage platforms to proactively monitor speech, the existing limited liability regime should be enhanced through more rigorous, and clear procedural standards6 for notice and action and, most importantly, transparency frameworks that empower independent third parties to hold platforms to account.

Self-Regulatory Transparency does not Go Far Enough

Improved user-facing transparency is necessary7 and can offer much-needed insight into the personalized results presented to individual users, but it cannot provide insight into the collective influence of platforms. To assess and monitor how platforms apply their community standards, or address collective societal risks like disinformation, polarization, and bias, we must rely on evidence from independent third parties. But for the journalists, academics and civil society actors tasked with understanding and scrutinizing opaque algorithmic “black boxes”, such evidence is difficult to generate. Independent researchers encounter tremendous challenges accessing reliable data from platforms8 and in recent years, platforms have further restricted access to their public Application Programming Interfaces (APIs), making it nearly impossible to hold companies accountable for illegal or unethical behavior9.

For researchers and watchdogs, it has become clear that self-regulatory transparency frameworks are “incomplete, ineffective, unmethodical, and unreliable”10. The concentration of data in the hands of a few private companies has a deep impact on the overall health of the digital public sphere.

Towards Accountability in Platform Governance: Empowering the Digital Fourth Estate

To this end, we applaud the EU Parliament Committees’ emphasis on the need to audit algorithms used in content moderation, and curation11. However, meaningful monitoring of automated decision-making (ADM) systems also requires scrutiny of system in/outputs, a task best suited for independent academics, journalists and civil society actors. We welcome the establishment of the new EU Digital Media Observatory and the Commission’s efforts to provide researchers with tools to better understand disinformation12, but are convinced that the EU should move beyond its siloed approach to tackling specific online harms. For this reason, we propose that the DSA should introduce comprehensive data access frameworks that empower civil society and pave the way for true accountability.

Learning from best practices in privacy-respecting data-sharing governance models, these data access frameworks should include:

1. Binding rules outlining who can directly access data or can apply for access, what specific data can be accessed13 and how and by whom that data is to be gathered and checked before disclosure.

2. An EU institution with a clear legal mandate to enable access to data and to enforce transparency obligations in case of non-compliance across the EU27.

3. Provisions that ensure data collection is privacy-respecting and GDPR compliant

A Critical Piece of the Pie

A healthy democracy depends on a strong and healthy public sphere—and most importantly, a strong and healthy fourth estate. When journalists, academics, and civil society are free to challenge and scrutinize power, policymakers are kept in check, and the public can make more informed decisions. While there is no single silver bullet to address all of the challenges linked to the platform economy, we are convinced that the proposals outlined above serve as critical baseline demands for improved accountability in the digital public sphere.


These recommendations are based on the findings of three studies commissioned from the Mainz Media Institute and the Institute for Information Law at the University of Amsterdam. To read these reports in full:

Are Algorithms a Threat to Democracy?
The Rise of Intermediaries: A Challenge for Public Discourse
Professor Dr. Birgit Stark and Daniel Stegmann, M.A.
with Melanie Magin, Assoc. Prof. & Dr. Pascal Jürgens

Designing platform governance:
A normative perspective on needs, strategies, and tools to regulate intermediaries
Prof. Dr. Matthias Cornils

Operationalizing Research Access in Platform Governance
What to Learn from Other Industries?
Dr. Jef Ausloos, Paddy Leerssen, & Pim ten Thije



Access Now
Alternatif Bilişim
AMO (Asociace pro mezinarodni otazky) – Association
for International Affairs
ApTI Romania
Center for Media, Data and Society at the Central,
European University’s School of Public Policy
Centrum Cyfrowe
Civil Liberties Union for Europe
Defend Democracy
Democracy Reporting International
European Center for Not-for-Profit Law
European Digital Rights
European Policy Centre
Global Forum for Media Development
Homo Digitalis
Lithuanian Journalism Centre
Media Development Centre Bulgaria
The Open Society European Policy Institute
Panoptykon Foundation
SHARE Foundation Belgrade
Stiftung Neue Verantwortung


Dr. Marco T. Bastos,
Ad Astra Fellow - University College Dublin,
School of Information and Communication Studies

Prof. Dr. Lance Bennett,
Ruddick C. Lawrence Professor of Communication,
Emeritus, University of Washington, Seattle

Dr. Alan Borning,
Professor Emeritus, Paul G Allen School of Computer Science & Engineering,
University of Washington

Prof. Dr. Joanna J. Bryson,
Professor of Ethics and Technology at the Hertie School of Governance

Prof. Dr. Claes de Vreese,
Professor and Chair of Political Communication
at the Amsterdam School of Communication Research, University of Amsterdam

Prof. Dr. Natali Helberger,
Distinguished University Professor of Law and Digital Technology,
with a special focus on AI at the University of Amsterdam

Prof. Dr. Slava Jankin,
Director, Data Science Lab at the Hertie School of Governance

Dr. Christian Katzenbach,
Senior Researcher, Alexander von Humboldt Institute
for Internet and Society, Berlin

Prof. Dr. Sophie Lecheler,
Department of Communication, University of Vienna

Prof. Dr. Simon Munzert,
Hertie School of Governance

Prof. Dr. Barbara Pfetsch,
Institute for Media and Communication Studies, Freie Universität Berlin

Prof. Dr. Nathaniel Persily,
James B. McClatchy Professor of Law, Stanford Law School

Prof. Dr. Cornelius Puschmann,
ZeMKI, University of Bremen

Prof. Dr. Daniela Stockmann,
Professor of Digital Governance, Hertie School Centre for Digital Governance

Prof. Dr. Linnet Taylor,
Tilburg Institute for Law, Technology and Society

Prof. Dr. Rebekah Tromble,
Director, Institute for Data, Democracy & Politics, George Washington

Prof. Dr. Cristian Vaccari,
Professor of Political Communication and Co-Director,
Centre for Research in Communication and Culture, Loughborough University

1. Judith Duportail et al (2020): Undress or fail: Instagram’s algorithm strong-arms users into showing skin.

2. We use the term “content hosting intermediary” to refer to online services that provide third-party content, including, for example, user-generated contributions and also media content in any form (text, image, audio, or video).

3. Matthias Cornils et al (2020): Designing Platform Governance: A Normative Perspective on Regulatory Needs, Strategies, and Tools to Enhance the Information Function of Intermediaries; at the same time international human rights law (e.g. Art. 15 ECHR) puts very strict requirements for the conditions under which states can restrict freedom of expression and information, notably the principles of legality, necessity and proportionality and legitimacy.

4. Birgit Stark et al (2020): Are Algorithms a Threat to Democracy? The Rise of Intermediaries: A Challenge for Public Discourse.

5. Matthias Cornils et al (2020): Designing Platform Governance: A Normative Perspective on Regulatory Needs, Strategies, and Tools to Enhance the Information Function of Intermediaries.

6. Such standards should include complaint management/redress mechanisms, including put-back obligations. When embedded in a co-regulatory approach, independent dispute settlement bodies such as those proposed can play an important complementary role in ensuring that users’ fundamental rights are upheld. For further details, see: EDRi (2020): Platform Regulation Done Right. EDRi Position Paper on the EU Digital Services Act.

 7. For further elaboration on recommendations for user-facing transparency see: Panoptykon Foundation (2020) Panoptykon Foundation’s submission to the consultation on the Digital Services Act Package.

8. Madeline Brady (2020): Lessons Learned: Social Media Monitoring during Elections: Case Studies from five EU Elections 2019-2020 (Democracy reporting International).

9. Researchers depend on private data sharing partnerships and privileged access to platform data which has the effect of further entrenching platform power, leading to chilling effects amongst researchers, who are afraid to lose access to platform data. Researchers who depend on what little data is available complain about its poor quality. Frequently, data is not available in machine-readable format or it is clearly inaccurate. The consequences are twofold. The impact of platforms on society remains severely understudied at a systemic level, and the research that exists skews heavily towards the most transparent platforms, causing substantial distortions. For further details see Nikolas Kayser-Bril (2020) For researchers, accessing data is one thing. Assessing its quality another; and Under the Twitter streetlight: How data scarcity distorts research.

10. For further elaboration on the recommendations see Jef Ausloos et al (2020): Operationalizing Research Access in Platform Governance: What to Learn from Other Industries?, the problems of lack of consistency in reporting and lack of relevant data available for adequate monitoring is also clearly stated by the European Regulators Group for Audio-visual Media Services (ERGA), in relation to the enforcement of the European Commission’s Code of Practice on Disinformation.

11. European Parliament Committee on Legal Affairs (2020): Draft report with recommendations to the Commission on a Digital Services Act: adapting commercial and civil law rules for commercial entities operating online, PE650.529v01-00, 22 April 2020 (JURI report), European Parliament Committee on the Internal Market and Consumer Protection, ‘Draft report with re-commendations to the Commission on Digital Services Act: Improving the functioning of the Single Market’, PE648.474v02-00, 24 April 2020 (IMCO report).

12. European Commission (2019) Commission Launches Call to Create the European Digital Media Observatory.

13. It is essential that disclosure rules remain flexible and subject to updates and revisions by the proposed independent institution.

14. Additionally, these recommendations should be viewed separately from any ex-ante legislation that will apply on the basis of increased‚ data power‘ that enables dominant platforms to engage in‚ gate-keeping‘ practices that hamper new entrants and fair competition to the market. These recommendations are intended to apply prior to the activation of ex-ante legislation, and remain in effect regardless of the obligations that a future ex-ante instrument will enforce. For nuanced criteria that characterize dominant platforms/intermediaries, see EDRi (2020): Platform Regulation Done Right. EDRi Position Paper on the EU Digital Services Act, p.16.

15. For more details on proposed disclosure rules in the area of advertising see the European Partnership for Democracy’s joint statement on Universal Advertising Transparency by Default.

16. Beatrice de Graaf et al (2017): The Dutch National Research Agenda in Perspective: A Reflection on Research and Science Policy in Practice.

17. AlgorithmWatch (2020): Our response to the European Commission’s consultation on AI.

18. See Findata case study in Jef Ausloos et al (2020): Operationalizing Research Access in Platform Governance: What to Learn from Other Industries?

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