A. Experimental research in behavioural science

Before moving to the details of our study, it is worth briefly highlighting the role of research on human behaviour, especially when used in the context of understanding social media users as well as constructing and interpreting laws such as the DSA. At the outset, it is important to clarify that this discussion does not aim to provide a comprehensive overview of all empirical methodologies employed in research investigating behaviour (or empirical legal studies in general).^{Footnote 18} Such research encompasses a diverse array of qualitative, quantitative and mixed methods, each with distinctive strengths and limitations that make them suitable for addressing specific research questions. For instance, qualitative approaches (which include ethnographic studies, interviews, and thematic analyses) can deliver rich, contextually nuanced insights into people’s perceptions and experiences, enabling a nuanced understanding of complex social processes. By contrast, quantitative methods (including survey-based and experimental studies), are particularly suited to systematically test relationships between specific factors underlying behaviour, allowing researchers to identify patterns and make robust generalisations about human judgements and decision-making. Given this wide methodological landscape, and due to the particular objectives of our current research, we focus here on only one quantitative empirical approach, experimental research.

Broadly defined, behavioural science refers to the study of human behaviour.Footnote ¹⁹ Researchers within this field formulate hypotheses about how people, for example, make judgements, form attitudes and beliefs, respond to incentives or reach decisions, by relying on established scientific theories and using statistical methods to reach conclusions about the accuracy of these predictions. Experimental research is one means used within the field in which individual judgements and choices are captured in a controlled setting.Footnote ²⁰ By altering a factor (known as the independent variable) in order to see whether it causes a change in another factor (known as the dependent variable), it is thus possible for researchers to examine, for example, whether changing the type of content that somebody sees, affects a person’s decision whether to report such content or not. In this way, experimental research has the particular goal of providing a detailed, mechanistic understanding of judgements and decisions, including the specific psychological factors that underlie such behaviour.Footnote ²¹

As with all research methods, an experimental approach involves certain trade-offs. Achieving a high degree of experimental control needed to describe relationships and draw inferences typically requires researchers constructing scenarios that approximate, but necessarily simplify, real-world situations. This simplification affects what researchers refer to as ecological validity, namely the degree to which experimental findings can directly generalise or transfer to more complex, naturally occurring settings. While perfect replication of real-world complexity within controlled experimental conditions is inherently challenging, it is important to emphasise that this simplification serves a deliberate and valuable purpose: it allows researchers to precisely isolate and rigorously test specific factors thought to shape human behaviour. Indeed, the primary strength and objective of experimental research lies precisely in its capacity to uncover clear and reliable causal relationships between selected variables of interest. Nonetheless, the inferences drawn from experimental data thus depend heavily on the scenarios created (including the specific factors the researcher has chosen to study) and the characteristics of the sample populations tested, which might not always reflect broader user populations or authentic online environments. Therefore, while experimental studies can provide significant clarity regarding which psychological factors influence behaviour under carefully defined and controlled conditions, the applicability of these findings to real-world contexts should always be interpreted carefully, considering both the experimental setup and the specific characteristics of the participants involved.

Despite these considerations, behavioural experiments provide valuable insights that can complement and extend traditional approaches used in research in law as well as platform governance. Legal scholarship typically provides normative guidance regarding expected behaviours from individuals and platforms. Qualitative studies, as an empirical example, can offer rich descriptive accounts of perceptions and practices related to online moderation. Behavioural experiments contribute uniquely to this discourse by empirically testing the psychological assumptions underlying people’s judgements and decisions. Specifically, an experimental approach enables rigorous testing of how users respond to regulatory provisions, rather than relying on theoretical or normative assumptions about their behaviour. In this way, and more simply put, experimental evidence can help provide data on how people behave, as opposed to how they are assumed to behave. In this regard, and as detailed above, the DSA relies on a number of assumptions about behaviour, and thus experimental studies on this topic can provide important information into how people may indeed interact with the Regulation’s procedural requirements. Furthermore, this type of empirical evidence can also help lawmakers consider how more effective provisions ought to be designed in upcoming reviews and amendments of the DSA.Footnote ²² Ultimately, when integrated with normative legal reasoning and other empirical findings, behavioural experiments contribute to a more robust, empirical foundation for understanding people’s behaviour and improving regulatory frameworks in digital governance. Thus, our aim is to underscore how these different disciplinary perspectives are complementary, collectively enriching interdisciplinary dialogue and enhancing empirical legal scholarship including as it pertains to Regulations like the DSA.

B. Empirical findings on reporting and punishment on social media

In order to begin an exploration into judgements and decisions concerning the reporting of online content, we conducted an online experimental study with a diverse sample of social media users residing across EU Members States with the primary goal of capturing their preferences regarding content moderation when presented with content that they may ordinarily be exposed to on social media. The full empirical study, together with a detailed discussion of the statistical analyses and results from a psychological perspective, have been published in a separate article; nonetheless, we still provide our methodology and results below.Footnote ²³

A. Testing the legal/illegal dichotomy against individual preferences

As mentioned above, one of the policy aims of the DSA is to ensure that illegal content is promptly removed from social media platforms. To this end, the Regulation allows individuals and entities to ‘flag’ or ‘report’ the allegedly illegal content they encounter online through the notice-and-action mechanism of Article 16, discussed above in section 1. The DSA broadly defines illegal content as ‘any information that, in itself or in relation to an activity, […] is not in compliance with Union law or the law of any Member State which is in compliance with Union law, irrespective of the precise subject matter or nature of that law’.Footnote ³⁵ To comply with the DSA, many platforms have included a new notice category, often called ‘illegal content’, alongside the voluntary notice mechanisms that concern lawful content that is potentially incompatible with the relevant platform’s terms of service, as illustrated in section 1 above. Unlike existing typologies of content labels facilitating notification, the category of ‘illegal content’ prompts the flaggers to identify themselves according to their own legal name, while also having to identify and describe the legal basis upon which illegality is invoked.

When looking at content moderation through a behavioural science lens, a complex reality emerges. Our study demonstrates that the decision to report content is influenced by (among other factors) moral considerations that transcend the legal/illegal dichotomy: our participants reported morally negative images more often than morally positive or neutral ones, although none of those images were likely to constitute illegal content within the definition of the DSA. In other words, individuals and entities may wish to report or flag online content based on moral considerations, even if that content is not illegal. Thus, a tension emerges between the logic of the DSA and the preferences of individuals. On the one hand, the DSA conceives of the notice-and-action mechanism of Article 16 as a way to enable individuals and entities to report illegal content and obtain its swift removal, consistently with the oft-cited rationale of ensuring that ‘what is illegal offline must also be illegal online’.Footnote ³⁶ On the other hand, in practice, notice-and-action mechanisms are also used to report morally objectionable content, even in cases where that content is not illegal.Footnote ³⁷ These results are consistent with the fact that most social media users are not lawyers, and they lack the expertise necessary to determine whether a piece of content they perceive as morally negative is also unlawful. Furthermore, our findings resonate with the results of previous studies, which confirm that morality (rather than only legality) shapes behaviour on social media.Footnote ³⁸ Thus, Article 16’s exclusive focus on illegal content leaves out other forms of morally negative (but legal) content, which individuals or entities may wish to report, but for which the possibility of reporting depends on the platforms’ voluntary initiative. In the absence of a legal obligation to put in place a notice-and-action mechanism for LBA content, there is a significant risk of blind spots in platform affordances: practical experience demonstrates that, in the current reality of content moderation, platforms often fail to offer the possibility to file certain types of complaint with regard to the content they host.Footnote ³⁹ This, in turn, raises the issue of disenfranchisement; if somebody wishes to report LBA content, but is not given the opportunity to do so, they may be reluctant to file notices in the future, when they encounter harmful content. Importantly, this could potentially have a negative impact on the practical usefulness of notice-and-action mechanisms as a whole, also as a tool for the detection of illegal content. This is particularly relevant, considering how platforms are currently implementing illegal content into their notice-and-action interfaces: as already mentioned, reporters are asked to reveal their legal identity, and to specifically identify the legal grounds of their report (eg, mentioning the specific law the content infringes, as well as the specific jurisdiction where that law is applicable). While this approach can be a way for platforms to outsource the potential labelling of content as illegal, it also raises serious concerns relating to the reporters’ self-efficacy in performing legal qualification tasks, as well as the impact that such a task may have on the reporters’ incentives to report illegal content.

Furthermore, our study demonstrates that the aforementioned risk of disenfranchisement is far from theoretical. Our participants reported having frequently encountered inappropriate or harmful content on social media,Footnote ⁴⁰ and showed the conviction that the users that post that content should be ‘punished’.Footnote ⁴¹ In other words, despite laypeople lacking the legal expertise to distinguish between legal and illegal content, they do routinely encounter content that, in their opinion, warrants moderation, and they think that platforms should take adequate measures to that end. Therefore, it can be argued that, if a platform fails to afford the opportunity to even complain about LBA content (which can and does happen, given that notice mechanisms for LBA content depend on the platforms’ voluntary initiatives), trust in content moderation as a whole may be negatively affected. Indeed, our study demonstrates that reporting behaviour is affected by the level of trust towards social media platforms: on average, the participants that expressed distrust towards social media platforms had significantly lower reporting rates than those claiming to trust the same platforms.Footnote ⁴² To make matters more delicate, our participants expressed on average low and/or undecided levels of trust with respect to all social media platforms covered in our study.Footnote ⁴³ While further research is needed to unpack the underlying components behind people’s (lack of) trust in social media platforms, these findings highlight the importance of trust in online intermediaries in subsequent judgements and decisions.

In sum, from this point of view, the DSA is off to an uphill start: while the Regulation enables active participation in reporting illegal content, individuals and entities may not trust platforms enough to engage with their notice-and-action mechanisms, and that trust may be further eroded by the potential absence of a suitable avenue for complaint with respect to lawful content that is perceived as morally negative. As pointed out by Husovec,Footnote ⁴⁴ the DSA is geared towards digital due process, and aims at offering an articulate set of avenues for complaint and redress. If disenfranchised individuals end up ignoring those avenues, though, the DSA may end up having limited practical impact. Empirical evidence thus suggests that an extension of Article 16 with respect to LBA content may at least partially alleviate this concern, mitigating the sharp legal/illegal dichotomy on which the provision is currently based.

B. Perceived responsibility and its significance under the DSA

Our study provides insights on the psychological incentives underlying a decision whether to report social media content or not. More specifically, the perception of one’s responsibility is a predictive factor in his/her reporting behaviour: if somebody perceives reporting as his/her task or obligation, he/she will file notices more often than somebody perceiving no such responsibility.

This finding casts several DSA provisions in an interesting light, and paves the way for further empirical research on the topic. More specifically, under Article 6 DSA, platforms are generally not liable for online content whose presence they are not aware of. However, once somebody files a notice concerning the presence of illegal content, this gives rise (under certain conditions) to the platform’s ‘actual knowledge or awareness’, depriving the platform of its immunity from liability.Footnote ⁴⁵ Therefore, platforms may potentially have an incentive not to stimulate people’s feeling that they have a responsibility to report certain categories of illegal content. This holds particularly true for content that, whilst illegal, may not be seen as particularly problematic by platforms. A good example are ‘advertorials’, ie, undisclosed forms of advertisement, which are a widespread problem on social media platforms:Footnote ⁴⁶ while advertorials are prohibited by EU consumer law,Footnote ⁴⁷ platforms may not have a strong interest to systematically curtail this practice, which ultimately feeds into the business model of social media, blurring the boundaries between commercial and non-commercial speech.Footnote ⁴⁸ From this point of view, manipulating the perceived responsibility to report illegal content could be a strategy for a platform to avoid losing its immunity from liability, with respect to certain forms of illegal content that the platform has no real interest in countering.

In practice, platforms may be able to alter the perceived responsibility to report content through the information they disclose regarding illegal content and the role of filing notices in targeting them, as well as by structuring the interface and user experience in certain ways which impact one’s ability to act. For instance, platforms may make the ‘report’ button more or less visible, and generally build their interface in a way that emphasises or minimises the perception that a notice can easily be filed. There is even a risk that platforms deploy ‘dark patterns’,Footnote ⁴⁹ eg, an intentionally misleading interface and user experience aimed at preventing people from developing any sense of responsibility with respect to certain types of illegal content. Far from being theoretical, these risks have been researched and debated in different contexts, such as Germany’s NetzDG law.Footnote ⁵⁰ Importantly, the DSA addresses these risks, and our findings provide insights into how its provisions could be interpreted and operationalised. More specifically, Article 25 of the DSA focuses on the platform’s interface design and organization, precisely with the purpose of avoiding the psychological manipulation of users. Under this provision, platforms are prevented from designing, organizing or operating their online interfaces ‘in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions’. Given our findings concerning the perceived responsibility to report content, notice-and-action mechanisms could be monitored closely by the European Commission and the Digital Services Coordinators, when assessing whether platforms comply with Article 25. In addition, further empirical research is necessary to test the impact of different interface design choices on the perceived responsibility to file notices and, thus, their reporting behaviour. This empirical research, in turn, could feed into the guidelines issued by the Commission under Article 25(3), concerning, eg, the prominence of the ‘report’ button, and/or the pop-ups asking for confirmation when somebody initiates a report.

Furthermore, our findings have the potential to inform the practical application of Article 44(1)(a) of the DSA. Pursuant to this provision, the Commission supports and promotes the development and implementation of voluntary standards in respect of the electronic submission of notices. Standardization of notice-and-action mechanisms can have a meaningful impact on the practical use of these instruments: if all major platforms offered everyone the same mechanism, it would become easier for individuals and entities to familiarise themselves with it, and to navigate the different steps required to submit a notice and trigger the platform’s ‘actual knowledge or awareness’ under Article 6. Article 44, however, does not specify the goals that such a standardization process should pursue. The industry, thus, could standardise notice-and-action mechanisms in a way that encourages the perceived responsibility to file notices, but also in a way that discourages such perception. Standardization may fail to facilitate the filing of notices, and actually hinder it, if the standardised notice mechanism prevents people from developing a sense of responsibility, or otherwise infringes on their ability to act on such responsibility. Our results show that, during the process of standardizing notice-and-action mechanisms, the psychological effect of different design choices could be of paramount importance, and further empirical research is necessary to measure to what extent different aspects of the current notice-and-action mechanisms have an impact on reporting behaviour.

The findings also have implications for further research on the role of so-called ‘trusted flaggers’. Under Article 22 DSA, trusted flaggers are certified entities with ‘particular expertise and competence for the purposes of detecting, identifying and notifying illegal content’;Footnote ⁵¹ they are independent from platforms, and they must operate ‘diligently, accurately and objectively’Footnote ⁵² when submitting notices. According to the same provision, platforms have an obligation to give priority to the notices filed by trusted flaggers, and to process and decide upon them without undue delay.Footnote ⁵³ Therefore, under the DSA, not all notices are ‘born equal’: notices filed by trusted flaggers are deemed to warrant preferential treatment, compared to notices filed by ‘regular’ flaggers. On the one hand, this differentiation is understandable: since Article 16 of the DSA conceives of notice-and-action mechanisms as tools for the detection of illegal content, it makes sense to grant some kind of priority to notices filed by entities that possess the expertise necessary to assess whether a certain piece of content may indeed be illegal. As mentioned above, flaggers lacking such expertise will often be ill-equipped to evaluate whether content with a morally negative connotation is also illegal. On the other hand, however, if trusted flaggers were to gain particular prominence in content moderation, the question arises whether this could diminish the regular flaggers’ perceived responsibility to file notices, for at least three reasons. First, when encountering potentially illegal content, ‘non-trusted’ flaggers may feel like their notice is superfluous, because certified trusted flaggers are likely to detect and report that content. Second, and relatedly, Article 22 may engender the perception that filing a notice requires sectoral expertise, and that the average social media user is not well equipped to make the decision whether to report content or not. Third, non-trusted flaggers may be discouraged by the fact that their notice will not be processed with priority, and they may assume that their own report will not be regarded as important/relevant by the platform. These hypotheses are in line with the results of our study, which indicated that individuals’ likelihood to take action was significantly influenced by whether they perceived the responsibility to do so as their own.Footnote ⁵⁴ The primary aim in our experimental study was specifically to examine how experimentally manipulated perceptions of responsibility can (and did indeed) affect participants’ judgements and decisions about reporting potentially harmful content. However, more research is needed before drawing definitive conclusions in this respect: particularly, it is necessary to investigate to what extent the individuals and entities mentioned in Article 16 are aware of the existence of trusted flaggers, and of the preferential treatment accorded to them. A future study could answer this question, and subsequently scrutinise whether this awareness (if existent) indeed has an effect on the incentives to report potentially illegal content.

An additional implication of our study concerns the potential misuse of notice-and-action mechanisms. Article 23 DSA concerns the possibility of ‘misuse’ of social media; more specifically, Article 23(1) addresses the case of a user that frequently provides manifestly illegal content, while Article 23(2) focuses (among other cases) on users that frequently file manifestly unfounded notices. In both scenarios, the DSA requires platforms to suspend the user, ‘for a reasonable period of time and after having issued a prior warning’.Footnote ⁵⁵ Importantly, under article 23(3)(d), platforms must take into account the ‘intention’ of the user submitting the complaint or notice, when deciding whether that user has abused his/her right to report content. It will be interesting to see how platforms (and courts reviewing platforms’ decisions) will evaluate the intention of those who file unfounded notices. The question is whether the DSA requires platforms to be more lenient towards users that have demonstrably shown to be feeling a responsibility to report, which could also lead to over-reporting.

Our results on the perceived responsibility to report content also raise some unanswered questions concerning the misuse of notice-and-action mechanisms, paving the way for future research on the topic. More specifically, if people lacking legal expertise perceive a responsibility to report content, platforms are likely to receive a higher number of complaints, compared to the situation where people feel no such responsibility. At the same time, if people do not feel any particular responsibility to report content, and/or if they are affected by the bystander effect of, eg, trusted flaggers, the notices that the platforms receive may be fewer, but more careless. Hence, further research is necessary to explore the relationship between the perceived responsibility to report content, and the frequency of unfounded notices.

C. Transparency obligations and the psychological importance of content moderation as a form of punishment

Our study shows that our participants care about ‘punishment’ of users posting content that is perceived as morally negative. This holds equally true for participants who were given a responsibility to report, and participants who were not. These results tie into the ‘action’ aspect of notice-and-action mechanisms, ie, the content moderation measure that a platform adopts upon receiving a well-founded notice. The DSA does provide transparency in some important respects, for instance requiring the disclosure of what measure has been adopted.Footnote ⁵⁶ However, there are also some potential limitations and shortcomings. Importantly, the person reporting the content does not receive any explanation in cases where the platform decides not to take any action. In that case, the person that filed the report will only receive a communication that no action has been taken.Footnote ⁵⁷ Once again, this may lead to disenfranchisement, if the complainant sees that the user goes unpunished, and they do not receive any explanation for the platform’s decision to take no action. Interestingly, this risk is already visible in practice: for instance, starting from 2022, the number of cases submitted by users to Meta’s Oversight Board (the external review body that Meta has set up to hear appeals on delicate moderation decisions made by the Company)Footnote ⁵⁸ progressively dropped from approximately 150,000 per month to less than 100,000 per quarter,Footnote ⁵⁹ possibly as a result of the growing user awareness that the Board only selects very few cases for review, while the other ones receive no review.

Furthermore, even in cases where a content moderation measure is adopted, the reporter only receives limited information about the platform’s decision.Footnote ⁶⁰ While Article 17 of the DSA does impose on the platform an obligation to specifically state the reasons for its decision with a good level of detail, this obligation only exists towards the affected user (ie, the poster), and not towards the complainant. This difference in treatment is not unjustified, since the poster is ultimately the one suffering a limitation of his/her ability to make use of the platform’s services. At the same time, however, it is important that the reporter also receive sufficiently detailed information about what type of measure has been adopted. Indeed, if the reporter only receives an unreasoned communication of the platform’s decision, without sufficient information as to what level of punishment or type of measure has been applied and why, they may end up losing trust in notice-and-action mechanisms as a whole.Footnote ⁶¹ As previously mentioned, our study demonstrates that those distrusting platforms file less notices than those that trust the same platforms. Thus, inasmuch as the DSA has the goal not to discourage the filing of notices by flaggers operating in good faith, an (at least partial) extension of the transparency obligations of Article 17 to the complainant may constitute a step in the right direction. Once again, when situating the DSA in the context of our experimental results, it becomes apparent how many provisions of this Regulation presuppose individual initiative and rely on implicit assumptions about behaviour, but sometimes fail to consider whether those presuppositions and assumptions comport with the reality of psychology, and whether the Regulation creates adequate behavioural incentives to reach the desired policy goals.

D. The impact of poster intention on reporting behaviour

A final set of DSA-related inferences can be drawn from data regarding the intention of those who post LBA content. More specifically, the study demonstrates that the participants’ decision to file a notice is influenced not only by the nature of the image that they see, but also by the intention of the user that posted that image: participants reported content with a negative moral connotation more often, when that content was endorsed (rather than criticised) by its poster. These results confirm the oft-repeated assumption that content moderation is essentially contextual:Footnote ⁶² especially with reference to LBA content, where no hard-and-fast prohibition exists in the law, certain posts may be perceived as acceptable when the poster wishes to draw attention to a problem, and unacceptable when the poster condones or endorses the content instead. Interestingly, this context-dependent approach is adopted by social media platforms themselves: Facebook’s Community Standard on Adult Nudity and Sexual Activity, for instance, generally prohibits images of uncovered female nipples, but makes an exception when the poster shares the image ‘for medical or health purposes’,Footnote ⁶³ such as raising awareness on mastectomy or breast cancer.Footnote ⁶⁴

Furthermore, this context-specific approach to content moderation has also been embraced by the Oversight Board. For instance, the Board held that Meta should make an exception to its policy of banning videos that depict sexual harassment, when (under certain well-specified conditions) the content is newsworthy and is shared for the purpose of ‘raising awareness’, not ‘in a sensationalised context’, and without involving nudity.Footnote ⁶⁵ Along similar lines, the Board held that Meta should make an exception to its Violence and Incitement Community Standard when a post contains the slogan ‘death to Khamenei’ (with reference to Iran’s Supreme Leader, Ayatollah Khamenei), but the sentence is ‘used rhetorically to mean “down with”’, rather than as an actual threat of violence.Footnote ⁶⁶

In sum, both the experimental results and the content moderation policies of companies like Meta (as interpreted by the Oversight Board) suggest that, when deciding whether to take a content moderation decision with regard to LBA content, the intention of the poster should not be ignored. This has two important implications for the DSA, concerning the (partial) prohibition of automated decision-making in the process of content moderation, and the regard of fundamental rights in the context of the platforms’ terms of service.

From the first point of view, it is widely acknowledged that, in the practice of content moderation, many decisions are made (at least at an initial stage) algorithmically.Footnote ⁶⁷ While machines may be well equipped to detect certain types of content (eg, pictures depicting nudity), they may fail to understand the intention of the poster sharing that content. For instance, an Oversight Board case revealed that, in the past, Meta’s algorithms have failed to detect that a picture of uncovered female breasts had been shared to raise breast cancer awareness, and that picture had been automatically removed from the platform despite Meta’s aforementioned health-related exception in its Community Standard on Adult Nudity and Sexual Activity.Footnote ⁶⁸ Here, the DSA does offer some guarantees of human review. While moderation at the initial stage of notice-and-action mechanisms may be entirely algorithmic, the following stage of internal complaint handling cannot be completely automated. More specifically, pursuant to Article 20 of the DSA, following a platform’s decision whether to adopt a content moderation measure or not, a complaint can be lodged by either the user posting the content, or those that submitted an (unsuccessful) Article 16 notice. When observed in the light of our experimental results, Article 20 does offer a limited but important guarantee by ensuring that a human moderator will review the poster’s intention and the context within which a certain type of content was shared. A flagger that filed an unsuccessful notice will then be able to request this human review, and voice the intent-related concerns that may have induced him/her to file an Article 16 notice in the first place.

From the second point of view, the question arises whether the DSA imposes on platforms an obligation to take into account the poster’s intention, when shaping their moderation policies with regard to LBA content. To be sure, the examples mentioned above demonstrate that platforms do already often consider poster intention, when determining whether a post is incompatible with their terms and conditions. The question, however, is whether the DSA obliges platforms to do so. The results of our behavioural study suggest that LBA content is perceived differently depending on the intention of the user that posted it. In light of this, it would be desirable for social media platforms to develop their terms of service in a way that accounts for poster intention, when determining to what extent lawful content should be taken down or otherwise moderated. However, the Regulation provides more questions than answers in this respect. On the one hand, article 14(4) of the DSA does refer to the fundamental rights of the poster, including freedom of expression. This reference could be construed as preventing the platforms from disregarding whether a user that posted LBA content did so with the purpose of raising awareness, participating to the public discourse, or otherwise making legitimate use of his/her freedom of expression. On the other hand, however, this provision does not apply to the drafting of terms of service that prohibit legal content, but only to the application and enforcement of those contractually imposed restrictions. Nevertheless, other DSA provisions may require platforms to structure their terms of service in a way that adequately considers poster intention. Under article 34(1)(b) of the DSA, very large platforms must subject their terms of serviceFootnote ⁶⁹ and content moderation systemsFootnote ⁷⁰ to a yearly risk assessment concerning, among other factors, ‘any actual or foreseeable negative effects for the exercise of fundamental rights’, including the right to freedom of expression and information. In this context, it could be argued that a platform’s terms of service may have a negative effect on a poster’s exercise of his/her fundamental rights, inasmuch as the contractual terms treat posters with different intentions in the same way, when they post the same type of content.

Finally, the insight that people’s perception of content with a morally negative connotation is influenced by the intention of the user posting that content could be helpful when applying Articles 35 and 37 of the DSA. Under the former, very large platforms may be required to alter their terms of service and content moderation practices as a ‘mitigation of risk’ measure. This provision obliges platforms to take adequate measures, to counter the risks identified through the aforementioned Article 34 risk assessment. Relatedly, according to Article 37, very large platforms also have an obligation to subject themselves to an independent audit; in this context, the adequacy of a platform’s mitigation measure can be tested. Our results suggest that the question whether a platform has failed to adequately take into account the intention of the poster, when creating and enforcing its content moderation policy, is important not only for those posting LBA content, but for a wider range of stakeholders.