Between Online and Offline Due Process: the Digital Services Act

The EU approach to governing the digital space increasingly features public law tools that seek to address the imbalances of powers of the online environment. Among those public law tools, EU fundamental rights have a prominent role. Hence, the questions emerge of how EU fundamental rights migrate and adapt to the legal issues of the world of bits, and how the coherence of EU law on- and off-line could be preserved. These issues become especially complex for the Digital Services Act adopted to repeal the E-commerce directive. This novel framework introduces procedural guarantees of ‘digital due process’ in the context of the take down procedure. Whether these procedural rights should be conceptualised as part of the EU standards of due process is a complex matter due to several controversial implications for the EU governance. While strengthening the EU due process pedigree of online take down procedures could enhance fairness on online platforms, it could also lead to a disintegration of the judicial authorities’ power and a potential balkanisation of fundamental rights’ protection.