Article 16 of the Charter of Fundamental Rights of the EU (‘the Charter’) creates in EU law the freedom to conduct a business. On its face the EU's proposed Digital Services Act (‘DSA’) includes provisions which inevitably restrict the freedom to conduct a business for impacted companies. That is the express intention of the proposal. This piece explores whether the restrictions proposed go beyond what is proportionate to achieve the stated policy objectives. If they are, they would be incompatible with Article 16; a topic which is receiving surprisingly little airtime in discussions to-date both about the DSA and technology regulation in general.
The DSA is different. It does require sophisticated techniques to be deployed. It does require the deployment of very substantial resources so as to constitute an extraordinary burden on service providers. And it arguably does so without striking a fair balance between the right of the service provider to conduct business with the other policy objectives that the DSA seeks to achieve. Should we not be talking about that?