Article 35 Mitigation of risks

Summary What does Article 35 of the DSA regulation say?

This article directly follows from Article 34, which requires providers of very large online platforms and very large online search engines to identify and assess systemic risks.

Article 35 is the response mechanism: once those risks are identified, providers must act on them.

The article sets out an obligation to put in place mitigation measures that are reasonable, proportionate and effective, and it provides a broad, non-exhaustive list of the types of actions that may qualify.

These range from adjusting platform design and content moderation processes, to adapting algorithmic systems, advertising practices, and measures specifically protecting minors or addressing manipulated media.

The article also assigns a role to the Board and the Commission, who are to publish annual reports on systemic risks and best practices, and may issue guidelines to assist with implementation.

Important points:

Providers of very large online platforms and very large online search engines must put in place mitigation measures tailored to the systemic risks identified under Article 34, with particular consideration for the impact of those measures on fundamental rights.
The Board, in cooperation with the Commission, is required to publish comprehensive annual reports identifying prominent systemic risks and best practices for mitigating them, broken down by Member State.
The Commission, in cooperation with Digital Services Coordinators, may issue guidelines on applying these mitigation obligations in relation to specific risks, and must organise public consultations when doing so.

Springlex's summary of the article is a reading aid, not a substitute for the legal text.

1. Providers of very large online platforms and of very large online search engines shall put in place reasonable, proportionate and effective mitigation measures, tailored to the specific systemic risks identified pursuant to Article 34, with particular consideration to the impacts of such measures on fundamental rights. Such measures may include, where applicable:
  1. adapting the design, features or functioning of their services, including their online interfaces;
  2. adapting their terms and conditions and their enforcement;
  3. adapting content moderation processes, including the speed and quality of processing notices related to specific types of illegal content and, where appropriate, the expeditious removal of, or the disabling of access to, the content notified, in particular in respect of illegal hate speech or cyber violence, as well as adapting any relevant decision-making processes and dedicated resources for content moderation;
  4. testing and adapting their algorithmic systems, including their recommender systems;
  5. adapting their advertising systems and adopting targeted measures aimed at limiting or adjusting the presentation of advertisements in association with the service they provide;
  6. reinforcing the internal processes, resources, testing, documentation, or supervision of any of their activities in particular as regards detection of systemic risk;
  7. initiating or adjusting cooperation with trusted flaggers in accordance with Article 22 and the implementation of the decisions of out-of-court dispute settlement bodies pursuant to Article 21;
  8. initiating or adjusting cooperation with other providers of online platforms or of online search engines through the codes of conduct and the crisis protocols referred to in Articles 45 and 48 respectively;
  9. taking awareness-raising measures and adapting their online interface in order to give recipients of the service more information;
  10. taking targeted measures to protect the rights of the child, including age verification and parental control tools, tools aimed at helping minors signal abuse or obtain support, as appropriate;
  11. ensuring that an item of information, whether it constitutes a generated or manipulated image, audio or video that appreciably resembles existing persons, objects, places or other entities or events and falsely appears to a person to be authentic or truthful is distinguishable through prominent markings when presented on their online interfaces, and, in addition, providing an easy to use functionality which enables recipients of the service to indicate such information.
1. The Board, in cooperation with the Commission, shall publish comprehensive reports, once a year. The reports shall include the following:
  1. identification and assessment of the most prominent and recurrent systemic risks reported by providers of very large online platforms and of very large online search engines or identified through other information sources, in particular those provided in compliance with Articles 39, 40 and 42;
  2. best practices for providers of very large online platforms and of very large online search engines to mitigate the systemic risks identified.
2. Those reports shall present systemic risks broken down by the Member States in which they occurred and in the Union as a whole, as applicable.
1. The Commission, in cooperation with the Digital Services Coordinators, may issue guidelines on the application of paragraph 1 in relation to specific risks, in particular to present best practices and recommend possible measures, having due regard to the possible consequences of the measures on fundamental rights enshrined in the Charter of all parties involved. When preparing those guidelines the Commission shall organise public consultations.

Relevant recitals

Recital 86 General standards for risk mitigation measures

Providers of very large online platforms and of very large online search engines should deploy the necessary means to diligently mitigate the systemic risks identified in the risk assessments, in observance of fundamental rights. Any measures adopted should respect the due diligence requirements of this Regulation and be reasonable and effective in mitigating the specific systemic risks identified. They should be proportionate in light of the economic capacity of the provider of the very large online platform or of the very large online search engine and the need to avoid unnecessary restrictions on the use of their service, taking due account of potential negative effects on those fundamental rights. Those providers should give particular consideration to the impact on freedom of expression.

Recital 87 Examples of content moderation mitigation measures

Providers of very large online platforms and of very large online search engines should consider under such mitigating measures, for example, adapting any necessary design, feature or functioning of their service, such as the online interface design. They should adapt and apply their terms and conditions, as necessary, and in accordance with the rules of this Regulation on terms and conditions. Other appropriate measures could include adapting their content moderation systems and internal processes or adapting their decision-making processes and resources, including the content moderation personnel, their training and local expertise. This concerns in particular the speed and quality of processing of notices. In this regard, for example, the Code of conduct on countering illegal hate speech online of 2016 sets a benchmark to process valid notifications for removal of illegal hate speech in less than 24 hours. Providers of very large online platforms, in particular those primarily used for the dissemination to the public of pornographic content, should diligently meet all their obligations under this Regulation in respect of illegal content constituting cyber violence, including illegal pornographic content, especially with regard to ensuring that victims can effectively exercise their rights in relation to content representing non-consensual sharing of intimate or manipulated material through the rapid processing of notices and removal of such content without undue delay. Other types of illegal content may require longer or shorter timelines for processing of notices, which will depend on the facts, circumstances and types of illegal content at hand. Those providers may also initiate or increase cooperation with trusted flaggers and organise training sessions and exchanges with trusted flagger organisations.

Recital 88 Mitigation of algorithmic and advertising risks

Providers of very large online platforms and of very large online search engines should also be diligent in the measures they take to test and, where necessary, adapt their algorithmic systems, not least their recommender systems. They may need to mitigate the negative effects of personalised recommendations and correct the criteria used in their recommendations. The advertising systems used by providers of very large online platforms and of very large online search engines can also be a catalyser for the systemic risks. Those providers should consider corrective measures, such as discontinuing advertising revenue for specific information, or other actions, such as improving the visibility of authoritative information sources, or more structurally adapting their advertising systems. Providers of very large online platforms and of very large online search engines may need to reinforce their internal processes or supervision of any of their activities, in particular as regards the detection of systemic risks, and conduct more frequent or targeted risk assessments related to new functionalities. In particular, where risks are shared across different online platforms or online search engines, they should cooperate with other service providers, including by initiating or joining existing codes of conduct or other self-regulatory measures. They should also consider awareness-raising actions, in particular where risks relate to disinformation campaigns.

Recital 89 Minors' best interests in mitigation measures

Providers of very large online platforms and of very large online search engines should take into account the best interests of minors in taking measures such as adapting the design of their service and their online interface, especially when their services are aimed at minors or predominantly used by them. They should ensure that their services are organised in a way that allows minors to access easily mechanisms provided for in this Regulation, where applicable, including notice and action and complaint mechanisms. They should also take measures to protect minors from content that may impair their physical, mental or moral development and provide tools that enable conditional access to such information. In selecting the appropriate mitigation measures, providers can consider, where appropriate, industry best practices, including as established through self-regulatory cooperation, such as codes of conduct, and should take into account the guidelines from the Commission.

Recital 90 Evidence-based, stakeholder-informed risk assessment

Providers of very large online platforms and of very large online search engines should ensure that their approach to risk assessment and mitigation is based on the best available information and scientific insights and that they test their assumptions with the groups most impacted by the risks and the measures they take. To this end, they should, where appropriate, conduct their risk assessments and design their risk mitigation measures with the involvement of representatives of the recipients of the service, representatives of groups potentially impacted by their services, independent experts and civil society organisations. They should seek to embed such consultations into their methodologies for assessing the risks and designing mitigation measures, including, as appropriate, surveys, focus groups, round tables, and other consultation and design methods. In the assessment on whether a measure is reasonable, proportionate and effective, special consideration should be given to the right to freedom of expression.

Table of contents

Springlex and this text is meant purely as a documentation tool and has no legal effect. No liability is assumed for its content. The authentic version of this act is the one published in the Official Journal of the European Union.