Leveraging Digital Services Act Against Facebook Profile Block

Question

I'm running an ambitious bootstrapped company called Justjoin.it - a job board for programmers. I used Facebook and my personal to talk about company building, and our successes. Facebook blocked my profile claiming I'm using it for advertising by posting from my personal profile. I tried to appeal their decision through their automated form, but I have not received any response. My company is based in Poland. Can regulations in Digital Services Act help me unblock my profile? Is there a part of the regulation I can use as leverage against Facebook to force them to act in my favor?

Answer

Under the Digital Services Act (DSA), you as an entrepreneur have recourse to challenge Facebook's blocking of your profile. The DSA requires Facebook to provide detailed and substantiated reasons for their actions, respect your freedom of expression, and handle any complaints you lodge in a timely and diligent manner. You can utilize Facebook's internal complaint system and also have the option to escalate the dispute to an out-of-court settlement body if necessary. These regulations serve to ensure transparency and fair handling, offering you several points of leverage to seek the unblocking of your profile.

Legal trace

The notice and action mechanisms should allow for the submission of notices which are sufficiently precise and adequately substantiated to enable the provider of hosting services concerned to take an informed and diligent decision. (Recital 53)

This part of the recital implies that under the Digital Services Act (DSA), the notice and action mechanisms must be well-defined to permit submissions that are detailed enough for hosting providers, like Facebook, to make informed decisions. This indicates that when Facebook restricts content or a user profile, there must be precise and substantiated reasons behind their actions.

compatible with the freedom of expression and of information (Recital 53)

The recital brings attention to the balance that must be achieved between content regulation and respect for fundamental rights such as freedom of expression and information. This suggests that the DSA regulations are designed to ensure that actions taken by service providers like Facebook do not unjustly encroach on users’ freedom of expression.

Those mechanisms should be such as to facilitate the provision of notices that contain an explanation of the reasons why the individual or the entity submitting a notice considers that content to be illegal content, and a clear indication of the location of that content. (Recital 53)

Here, the recital mentions that the mechanisms for content regulation should ease the process of providing notices, which must include explanations of why the content is deemed illegal and where it is located. This requirement for a detailed explanation could be leveraged by a user who has had their profile blocked or content restricted, potentially serving as a basis for demanding a thorough reason.

Providers of online platforms shall provide recipients of the service, including individuals or entities that have submitted a notice, for a period of at least six months following the decision referred to in this paragraph, with access to an effective internal complaint-handling system… (Article 20)

In the context of the question about unblocking a profile on Facebook, Article 20 is highly relevant, providing a formal process to lodge a complaint with Facebook and potentially have their decision reversed through the internal complaint-handling system.

Providers of online platforms shall handle complaints submitted through their internal complaint-handling system in a timely, non-discriminatory, diligent and non-arbitrary manner. (Article 20)

This section dictates how Facebook, as the provider, must deal with complaints. They are required to handle them promptly, fairly, and with due diligence, and must reverse the decision without unnecessary delay if found unwarranted.

Recipients of the service […] shall be entitled to select any out-of-court dispute settlement body… (Article 21)

Article 21 opens up another channel for dispute resolution beyond the internal complaint system. You can take the issue to a certified out-of-court dispute settlement body if you are not satisfied with Facebook’s internal resolution, offering more leverage for disputing account blockage.

Trusted flaggers should publish easily comprehensible and detailed reports on notices submitted… (Recital 62)

Recital 62 suggests that a system where trusted flaggers report their actions provides transparency. This could expose the decision-making process behind content moderation and potentially aid in requesting detailed information regarding the notices that led to account blocking.

Providers of hosting services shall provide a clear and specific statement of reasons to any affected recipients of the service… (Article 17, Paragraph 1)

Article 17 mandates that service providers such as Facebook inform users about the restrictions placed upon them, including account suspensions, by providing clear and specific reasons, especially involving alleged breaches of terms and conditions.

Given the analysis of the DSA provisions, it appears you have several points of leverage against Facebook’s decision to block your profile. By invoking your rights under Articles 17, 20, 21 and Recitals 53, 62, you could demand a clear explanation for the block, appeal the decision using both internal and external dispute resolution mechanisms, and if Facebook failed to comply with these obligations, potentially find grounds to argue for the unblocking of your profile.