Constitutional Aspects of Trusted Flaggers in the Netherlands

Abstract

The use of trusted flaggers is an established practice in content moderation by internet intermediaries such as Meta and Google. It allows engagement with expertise of governmental and non-governmental organizations, ensuring swift actionability of flagged content. The Digital Services Act formalizes this practice in Article 22. State entities have also been functioning as trusted flaggers, which has been a topic of scholarly and societal debate. This chapter discusses the constitutional tensions of the existing and new Digital Services Act (DSA) framework of trusted flaggers in the Netherlands with the right to freedom of expression as laid down in Article 7 of the Dutch constitution and Article 10 of the European Convention on Human Rights (ECHR). It makes several suggestions to increase the lawfulness, legitimacy, and accountability of this framework.