One Function, Two Regimes: Trusted Flaggers and Regulatory Fragmentation under the Digital Services Act

Abstract

Article 22 of the Digital Services Act (DSA) gives trusted flaggers a statutory role. It did not, however, put an end to the voluntary programs that platforms ran before the Regulation, and these continue to operate in parallel. This article looks at what that parallel existence means for accountability in content moderation. Using doctrinal legal analysis, the article traces Article 22 from the Commission's proposal through the Council's general approach and the European Parliament's amendments to the adopted text and examines eligibility, expertise, independence, transparency and safeguards against misuse. Designation by a Digital Services Coordinator brings a clear advantage, since qualifying notices must be prioritized on every covered platform and the flagger no longer has to bargain for that priority platform by platform. Voluntary programs, by contrast, sit outside the designation, reporting and revocation rules. Platform-level transparency, systemic-risk and audit obligations reach them only indirectly, as they do not require disclosure of which organizations receive priority, on what criteria or with what results. The article identifies this difference in accountability as a limitation of the statutory framework. It proposes separate reporting of notices from voluntary priority programs, published eligibility criteria for such programs and their inclusion in systemic-risk assessments, largely achievable within the existing Regulation. Priority requires prompt assessment of qualifying notices; it does not establish illegality or require automatic removal.