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In early July this year, the Ordo Iuris Institute submitted an opinion as part of the European Commission’s public consultation on the draft guidelines concerning the “trusted flaggers” mechanism under Article 22 of the Digital Services Act (DSA).

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In the Ordo Iuris Institute’s assessment, the draft guidelines represent a missed opportunity to balance the need for content moderation with the protection of freedom of speech, and in many respects even deepen the DSA’s existing systemic problems.

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The guidelines allow trusted flagger status to be granted to public entities – including specialized police units and Europol – without adequate guarantees of impartiality and political independence.

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The draft guidelines disregard the rights of the authors and recipients of content removed as a result of trusted flaggers’ actions, providing no effective remedy mechanism.

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The consultation runs until July 10, 2026 – the Ordo Iuris encourages all interested organizations to take part.

Introduction

In early July this year, the Ordo Iuris Institute submitted an opinion as part of the consultation conducted by the European Commission on the draft guidelines concerning the “trusted flaggers” mechanism provided for in Article 22 of Regulation (EU) 2022/2065 of the European Parliament and of the Council, known as the Digital Services Act (DSA). The trusted flaggers mechanism is a key element of the internet content moderation system, one capable of having a direct impact on the freedom of speech of users throughout the European Union. In the Ordo Iuris Institute’s assessment, the draft guidelines fail to strike a proper balance between the need to moderate illegal content and the protection of freedom of speech – and in many respects even deepen the DSA’s existing systemic problems. The submitted opinion identifies these gaps and formulates concrete recommendations for change. The Ordo Iuris Institute encourages all non-governmental organizations, academic circles, and entities interested in protecting freedom of speech in the digital space to take part in the consultation and to submit their own opinions through the form available on the European Commission’s website.

Who Are “Trusted Flaggers”?

In the opinion submitted to the European Commission, the Ordo Iuris Institute’s lawyers point out that entities holding trusted flagger status – including non-governmental organizations, industry associations, and public bodies such as specialized police units and Europol – obtain a privileged position within the system for reporting illegal content to online platforms, which are obliged to give such reports priority and handle them without undue delay.

In the document, the Institute’s experts stress that the significance of this privileged position can hardly be overstated.

It is highlighted there that, given the sanctions provided for under the DSA – reaching as much as 6% of global annual revenue – no major platform can afford to disregard reports from entities holding such status. In practice, trusted flaggers have a real influence over what users can publish and read online – an influence considerably greater than would follow from the DSA’s provisions alone. The European Commission’s draft guidelines were meant to remedy this state of affairs and ensure proper protection of freedom of speech. As the Ordo Iuris Institute’s experts point out, this did not happen.

The Digital Services Act and Freedom of Speech: The Systemic Context

In the submitted opinion, the Institute’s lawyers point out that the Digital Services Act creates a structure that generates systemic pressure toward excessive content moderation, even absent any ill will on the part of the EU legislature. Online platforms, threatened with severe financial penalties, have strong incentives to remove content whenever any doubt arises, rather than to conduct an in-depth legal analysis of each case. The concept of “illegal content” is defined broadly in the DSA and invites an expansive interpretation, covering not only content that directly violates the law but also content that “contributes to systemic risks.”

The Ordo Iuris Institute’s experts note that these “systemic risks” include, among other things, “negative effects on civic discourse and electoral processes” – a phrase that no legal provision defines, that no court has narrowed, and that the European Commission can interpret as prosecutor, judge, and legislator all in one. It is precisely in this context that the role of trusted flaggers takes on particular significance: it is they who are to identify content constituting these “systemic risks” and report it to platforms for priority handling.

Gaps in the Draft Guidelines

In the opinion submitted to the European Commission, Ordo Iuris lawyers point out that the draft guidelines contain a number of serious gaps.

First, the Ordo Iuris Institute’s experts assess that the draft fails to remove the fundamental ambiguity surrounding the concept of illegality. Although the guidelines recall that the assessment of a content’s legality falls within the legal orders of the individual member states, in many places they encourage platforms to forgo an in-depth legal analysis and instead refer them to EU systems for classifying unlawful conduct. In Ordo Iuris’s assessment, what is missing is a clear emphasis on the fact that each member state strikes a different balance between freedom of speech and the need for moderation, and that these differences are legitimate.

Second, in the Ordo Iuris Institute’s view, the draft guidelines fail to ensure the impartiality and political independence of trusted flaggers. As Ordo Iuris lawyers point out, Article 22 of the DSA requires only that such entities be independent of platforms, remaining silent on independence from governments and other political actors. The draft guidelines perpetuate this gap, expressly allowing trusted flagger status to be granted to public entities – including specialized police units and Europol – subject only to the condition of organizational separation from bodies holding decision-making powers. In the Institute’s assessment, this is decidedly insufficient: public and private bodies operate under different principles and require separate regulation, and organizational separation alone does not provide a sufficient guarantee against the mechanism’s politicization.

Third, as the Ordo Iuris Institute’s experts point out, the draft disregards the rights of the authors and recipients of content. As the Institute’s lawyers note, the trusted flaggers mechanism is constructed there as a bilateral relationship between the flagger and the platform, whereas in reality we are always dealing with a triangle: flagger–platform–author or recipient of the content. The draft provides no effective mechanism that would allow persons whose content has been removed to report irregularities to the Digital Services Coordinator of a member state other than the one in which the given flagger is registered.

Fourth, in the assessment of Ordo Iuris’s lawyers, the draft does not require trusted flaggers to provide legal justification for their reports. This means that a platform receives a report from a privileged entity without any indication of under which state’s law, and on what specific legal basis, the content in question is deemed illegal. Given the structural pressure to remove content “in case of doubt,” the absence of such a requirement is a serious gap.

Fifth, the Institute’s experts assess that the section on the accountability of trusted flaggers is particularly disappointing. The draft introduces no clear criteria for these entities’ accountability, grants injured parties no real remedies, and treats the mere absence of ties to platforms as the sole criterion for assessing independence, entirely disregarding the question of political engagement, external funding, or affiliation with structures financed by the European Commission.

Ordo Iuris’s Recommendations

In the submitted opinion, the Ordo Iuris Institute’s experts formulate a number of concrete recommendations concerning the definition of trusted flaggers’ purpose, the criteria for their independence and impartiality, the requirements for the legal justification of reports, the rights of the authors and recipients of removed content, and the rules for cooperation between the Digital Services Coordinators of the various member states. In the assessment of Ordo Iuris’s lawyers, the purpose of trusted flaggers should be defined not merely as filling gaps in the moderation system, but as active participation in striking the proper balance between fundamental rights. The independence criteria should go beyond the mere absence of financial ties to platforms and should encompass the entity’s apolitical character and its lack of involvement in ideologically contested issues. Trusted flaggers’ reports should be required to include a legal justification indicating the specific provisions and legal system on the basis of which the given content is deemed illegal. The circle of entities entitled to initiate a review of a flagger’s actions should include not only platforms but also the authors and recipients of removed content. Furthermore, Ordo Iuris’s experts point out that Digital Services Coordinators should be expressly encouraged to cooperate with their counterparts in other states, particularly in cases involving flaggers operating across multiple jurisdictions.

Commentary

The European Commission’s consultation on the draft guidelines on trusted flaggers runs until July 10, 2026, and is open to all interested parties. The Ordo Iuris Institute encourages non-governmental organizations, academic circles, the media, and all citizens interested in protecting freedom of speech in the digital space to take part and to submit their own opinions through the form available on the European Commission’s website. Participation in the consultation is one of the few instruments that allow civil society to have a real impact on the shape of regulations that are key to freedom of speech on the internet. The opinion submitted by the Institute, available here, may serve as a model for preparing one’s own position.

See also

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