Chapter 3|Due Diligence Obligations - Online Platforms|📖 8 min read
1. Recipients of the service shall be entitled to select any out-of-court dispute settlement body that has been certified in accordance with paragraph 3 in order to resolve disputes relating to the decisions referred to in Article 20(1), including complaints that have not been resolved by means of the internal complaint-handling systems referred to in that Article. Online platforms shall engage, in good faith, with the selected body and shall work towards reaching a settlement. However, they shall not be obliged to engage with a dispute settlement body where a dispute has already been resolved concerning the same information and ground of alleged illegality or incompatibility of the content with the terms and conditions.
2. Certified bodies shall be independent and impartial, shall not have conflicts of interest with the parties, shall provide their services at a cost-effective, transparent and reasonable fee, and shall issue decisions within a reasonable period of time, which shall not exceed 90 calendar days from the receipt of the complaint. In complex cases, certified bodies may exceptionally extend the period to 180 days.
3. Digital Services Coordinators of the Member State where the body is established shall, upon application by the body, certify out-of-court dispute settlement bodies for a period not exceeding 5 years, where they demonstrate that they meet all of the following conditions:
(a) they are independent from, and do not have conflicts of interest with, providers of online platforms and recipients of the service;
(b) they have the necessary expertise in relation to the issues arising in one or more particular areas of illegal content, or with the application and enforcement of terms and conditions of one or more types of online platforms, allowing them to contribute effectively to the settlement of a dispute;
(c) they are accessible through electronic communications technology;
(d) they are capable of settling disputes in a swift, efficient and cost-effective manner in at least one of the official languages of the Union;
(e) when they charge fees, their fee structure is accessible online in an easily accessible format;
(f) they have clear rules of procedure that are easily accessible and publicly available in an easily accessible format, that are fair, impartial and transparent, and that ensure that both parties have a reasonable opportunity to express their point of view and to comment on documents, statements and comments provided by the other party, and to select and propose evidence.
4. If the decision is in favor of the recipient, the online platform shall bear all fees charged by the certified out-of-court dispute settlement body. In all other cases, the fees shall be borne by the certified out-of-court dispute settlement body. Recipients shall not be charged by the certified bodies for filing complaints or for reimbursement to online platforms unless they acted in bad faith in engaging in an out-of-court dispute settlement.
5. Digital Services Coordinators shall communicate to the Commission the out-of-court dispute settlement bodies certified pursuant to this Article and shall send annual reports to the Commission detailing the activities of such bodies. The Commission shall make information on certified out-of-court dispute settlement bodies publicly available in a central database.
Understanding This Article
Article 21 creates THE alternative dispute resolution (ADR) mechanism for the DSA, establishing a middle layer between platforms' internal complaint systems (Article 20) and full court litigation (Article 53). This is crucial because courts are expensive, slow, and intimidating for individual users - most people won't sue over a removed post or suspended account. Out-of-court dispute settlement provides accessible justice.
The system is user-initiated and user-directed. When platforms reject Article 20 internal appeals, users can select ANY certified dispute settlement body to review the case. The user chooses - not the platform, preventing platforms from steering disputes to friendly arbitrators. This user empowerment is fundamental to the system's fairness.
Platforms must 'engage in good faith' - meaning participate meaningfully, provide evidence, respond to arguments, and work toward resolution. They can't simply ignore certified bodies or refuse cooperation. However, paragraph 1 includes one exception: platforms needn't re-litigate disputes already resolved for the same content/issue, preventing endless re-litigation.
Certification requirements (paragraph 3) ensure quality and independence. Bodies must be genuinely independent from platforms (no financial relationships, no conflicts), have genuine expertise (not generalists but specialists in content moderation, specific illegal content types, or platform governance), operate efficiently (reasonable timeframes, accessible technology), and maintain fair procedures (both parties heard, transparent rules, access to evidence).
The fee structure (paragraph 4) is brilliantly pro-user. If the user wins (decision in their favor), the platform pays ALL costs. If the platform wins, the dispute body eats the cost - users NEVER pay unless they acted in manifest bad faith. This eliminates financial barriers to justice while discouraging frivolous disputes (bad faith filing triggers fees).
The 90-day timeline (extendable to 180 for complexity) ensures reasonably swift resolution. Compare this to court litigation which might take years. Users get answers in months, not endless waiting. This makes dispute settlement practical for time-sensitive issues.
Bodies are certified for up to 5 years by Digital Services Coordinators, creating accountability. Poor performance, bias, or incompetence can lead to non-renewal. The Commission maintains a public database of certified bodies, enabling users to find and select appropriate dispute settlers.
Key Points
Users can escalate unresolved complaints to certified independent dispute settlement bodies
Platforms must engage in good faith with certified bodies
Bodies must be independent, impartial, with no conflicts of interest
Decisions must be issued within 90 days (up to 180 for complex cases)
If user wins, platform pays all fees; users never pay unless acting in bad faith
Bodies certified by Digital Services Coordinators for up to 5 years
Provides accessible, cost-effective alternative to court litigation
Creates expert third-party review layer between internal appeals and judicial remedies
Practical Application
For User Escalation: A TikTok user has their account permanently banned. They appeal through Article 20 internal complaints, but TikTok upholds the ban. The user then selects a certified dispute settlement body specializing in social media governance from the Commission's database. The user submits their case: 'TikTok banned me for alleged harassment, but I was defending myself against bullying. My comments were self-defense, not harassment.' The body reviews TikTok's evidence and the user's defense, considers platform policies and fundamental rights, and issues a decision within 90 days either upholding or overturning the ban.
For Platform Good Faith Engagement: When YouTube receives dispute settlement notice about a disputed video removal, YouTube must respond substantively - providing full evidence for removal (what policy was violated, why this video violates it, what factors were considered), addressing user's arguments point-by-point, and genuinely engaging with the dispute settler's questions. YouTube can't just say 'our decision stands' without justification - that's not good faith engagement.
For Body Certification: An NGO specializing in freedom of expression wants certification as a dispute settlement body. They apply to their national Digital Services Coordinator demonstrating: (1) independence (no platform funding, no conflicts); (2) expertise (staff includes content moderation experts, human rights lawyers, platform governance specialists); (3) accessible technology (online portal for case submission); (4) multilingual capacity (can handle cases in English, French, German); (5) transparent fee structure (published online); (6) fair procedures (written rules ensuring both parties heard, evidence shared, reasoned decisions). If criteria met, they receive 5-year certification.
For Fee Allocation: Facebook removes a user's post as misinformation. User appeals internally; Facebook rejects. User escalates to certified body. The body determines the post was opinion, not misinformation, and orders restoration. The certified body charged €150 for the case. Facebook pays the full €150 - the user pays nothing. However, if the user had knowingly filed a bad faith dispute (e.g., post was clearly misinformation and user knew it), the user might be charged fees as penalty.
For Complex Cases: A creator challenges YouTube's demonetization of an educational video about war crimes. The case involves nuanced questions about educational context, advertiser-friendliness policies, and proportionality. The certified body determines this needs more than 90 days for thorough analysis - reviewing the full video, consulting war crimes education experts, analyzing comparable cases, assessing YouTube's policy application. They extend to 180 days and issue comprehensive decision with detailed reasoning.
For Body Selection: Different bodies specialize in different areas. A user challenging copyright strike might choose a body specializing in IP and copyright issues. A user challenging hate speech removal might choose a body with hate speech and freedom of expression expertise. A user challenging marketplace seller suspension might choose a body specializing in e-commerce disputes. Users can select the most relevant expert body for their specific dispute type.
For Repeat Disputes: If Instagram previously settled a dispute through certified body about a specific post (post was ruled not violating, reinstated), the same user can't select a different certified body to re-litigate the same post/issue hoping for different result. The platform can decline participation citing prior resolution. However, if circumstances changed (new evidence, different issue with same post), a new dispute might be appropriate.
For Decision Implementation: When a certified body orders Instagram to restore wrongly-removed content, Instagram should comply promptly. While these decisions aren't legally binding court orders, the DSA creates strong incentives for compliance: non-compliance damages platform's reputation, can trigger regulatory enforcement, and users can still pursue judicial remedies (Article 53) where courts might view non-compliance unfavorably. Most platforms will comply to avoid escalation.
For Multiple Language Cases: A Polish user disputes content removal with TikTok. The user selects a certified body capable of handling disputes in Polish. The body conducts proceedings in Polish (user's language) but may also use English (TikTok's operational language). Bodies must handle at least one EU language but ideally should accommodate users' languages for accessibility.
For Cross-Border Disputes: A German user disputes Facebook (Irish company) content removal. The user can select any certified body in the EU - could be German, Irish, French, or any Member State's certified body. The certification is EU-wide, not restricted to single countries. Users pick based on expertise, language capacity, and reputation rather than geography.
For Transparency Reporting: Certified bodies must report activities to Digital Services Coordinators: number of cases handled, types of disputes, outcomes (user wins vs platform wins), average resolution times, fees charged, policy areas addressed. This data informs regulators about dispute patterns, platform compliance issues, and system effectiveness. Commission publishes aggregate data, enabling public accountability.
For Startup Platforms: Small platforms might worry about ADR costs. However, Article 19 exempts micro/small enterprises from Article 21 obligations. Only medium+ platforms face Article 21. When small platforms grow beyond exemption thresholds, they gain 12 months to prepare - potentially including negotiating arrangements with certified bodies, training staff on ADR procedures, and budgeting for potential case costs.