# Safeguarding Free Speech in the DSA's Trusted Flagger System The **Digital Services Act (DSA)** introduces a trusted flagger system designed to help platforms efficiently identify illegal content. However, the **EFF** and **ARTICLE 19** warn that without robust safeguards, this mechanism could inadvertently encourage the over-removal of lawful speech, weaken due process, and grant government authorities undue influence over online expression. The joint submission supports the Commission's focus on good practices and illustrative examples over strict legal interpretations. It advocates for guidelines that explicitly protect fundamental rights and the impartiality of the trusted flagger system. ## Defining 'Illegal Content' and Platform Responsibility Crucially, the organizations underscore the Commission's clarification that the DSA itself does not define "illegal content"; this determination must stem from applicable national or EU law. Platforms remain solely responsible for assessing whether content is genuinely illegal, even when a trusted flagger issues a notice. This necessitates careful, informed assessments by platforms, rather than assuming a notice automatically warrants content restriction. ## Key Areas for Strengthening the Guidelines The submission highlights several critical areas where the draft guidelines could be improved to better protect users and platforms: ### Cross-Border Legality Assessments Platforms should exercise extreme caution when assessing content legality across different Member States. National legal frameworks vary significantly, and a trusted flagger notice from one jurisdiction may not apply universally. ### Broadening Systemic Risk Considerations The DSA's systemic risk framework should extend beyond individual content moderation decisions. It must also encompass broader platform design choices, including the impact of recommender systems and other algorithmic functionalities, which can have significant effects on online expression. ### Limiting Law Enforcement's Trusted Flagger Status **EFF** and **ARTICLE 19** argue that law enforcement authorities should generally not be granted trusted flagger status. These authorities already possess statutory powers under Article 9 of the DSA. Granting them trusted flagger status risks platforms treating their notices as de facto removal orders, thereby undermining due process and the rule of law. ### Recognizing the Role of Civil Society Organizations Civil society organizations play a vital role in identifying illegal content and reporting human rights abuses. The guidelines should acknowledge their contributions and include protections against retaliatory campaigns that threaten their independence. ### Complementing, Not Replacing, Existing Partnerships The new trusted flagger mechanism should not sideline existing trusted partnership programs. Collaborations with civil society organizations, particularly those outside the EU with valuable regional expertise, are crucial and should continue to be recognized and supported, regardless of their trusted flagger status.