On June 26, the European Commission closes a little-noticed consultation on “trusted flaggers” — the final component of a system for deciding what Europeans may say online. Its defects are not drafting accidents. They are built into the design.
On June 26, 2026, a consultation few Europeans have heard of will quietly close in Brussels. The European Commission is finalising its guidelines on “trusted flaggers” under Article 22 of the Digital Services Act (DSA) — privileged notifiers whose reports of allegedly illegal content platforms must handle first. It is the last bolt in a machine assembled patiently for years. Once it is tightened, the EU will possess a complete, legally armoured system for managing what Europeans may say, read and share online. Before that happens, it is worth naming precisely what is wrong with this construction — because its defects are not accidents of drafting. They are congenital.
Censorship by terms and conditions
The first defect is the privatisation of censorship. The DSA censors no one directly; that is its genius and its alibi. Instead, it tells platforms that once they have “actual knowledge” of illegal content they lose their liability shield, and it arms the Commission with fines on the largest platforms of up to six per cent of worldwide annual turnover. No rational company litigates the nuances of lawful speech under such a threat. It deletes on doubt. The state’s hands remain clean while the dirty work is done by terms and conditions — and over blocking of perfectly legal speech becomes not a bug but the business model of compliance. No one disputes that genuinely illegal content — terrorist propaganda, child sexual abuse material — must come down, and fast. The question is what else comes down with it.
The second defect is the rule of vagueness. Articles 34 and 35 of the DSA oblige the largest platforms to assess and mitigate “systemic risks”, including “negative effects on civic discourse and electoral processes”. No statute defines these phrases. No court has delimited them. The same European Commission that interprets them also enforces them — prosecutor, judge and legislator in one office. In any Member State, a speech regime built on such clauses would be struck down as unconstitutional; in Brussels it is called good governance.
The third defect is the trusted flagger itself. The DSA demands that these privileged informers be independent of platforms — but says not a word about independence from governments. Recital 61 spells out the consequence: law enforcement internet referral units and Europol may themselves be flaggers. A ministry thus acquires a priority lane for removal requests that bypasses the safeguards attached to formal orders under Article 9 — no order citing a reviewable legal basis, no information on redress, no notification of the speaker. And the status is awarded, suspended and revoked by a state organ.
The referee on the payroll
The fourth defect is compulsory voluntarism. The Code of Conduct on Disinformation is formally optional; yet since its integration into the DSA in July 2025, a signatory’s commitments are checked by independent auditors, and a refusal to join — absent “proper explanations” — may be held against a platform when its compliance is assessed. Within this code, the adjudication of truth is outsourced to fact-checkers accredited by the European Fact-Checking Standards Network (EFCSN). That network was conceived in a Commission-funded project and is the beneficiary of a €5 million Commission grant; its co-founders include legacy media such as Agence France-Presse. The system’s second pillar, the European Digital Media Observatory (EDMO), is financed by the Commission outright — €4 million for its central platform in 2022 alone, some nearly €40 million more for its national hubs. The referee is on the payroll of the prosecution.
The fifth defect is asymmetry. The system builds express lanes for flagging speech and none for defending it. There are trusted flaggers; there are no trusted defenders — and a citizen whose lawful post has been wrongly deleted will find no priority procedure for putting it back.
Two regimes for the same sentence
Where do the traditional media stand in all this? At the centre — on both sides of the counter. Article 18 of the European Media Freedom Act grants “media service providers” a genuine privilege on the largest platforms: reasons before suspension or downranking, twenty-four hours to reply, priority complaints. But access runs through a declaration whose decisive condition — oversight by a national regulator or adherence to a “widely recognised” self-regulatory mechanism — is, for most online media, a gate controlled by incumbent structures. And in February 2026 the Commission’s guidelines C/2026/901 completed the circle: Platforms are encouraged to involve, in the review of media declarations, organisations belonging to the very networks the Commission finances — EDMO and EFCSN, populated by the fact-checking desks of the legacy press agencies. Licensing of the press, abolished in Europe’s constitutions, returns in co-regulatory disguise — with competitors vetting competitors.
Worse still, the privilege contains a trapdoor: It is disapplied wherever a platform acts in compliance with its duties on the protection of minors, on “systemic risks”, under the audio visual directive, or against illegal content. Protection evaporates precisely where the political interest in silencing is greatest.
Consider the practice. Two authors publish an identical sentence about migration, gender policy or an election. One writes for a broadcaster affiliated to a recognised press council; the other is an independent commentator, a scholar, a priest, a think-tank analyst. The first receives advance notice, reasons, a day to reply and a priority appeal. The second receives nothing — and meanwhile his words may be flagged through the priority lane and wrapped in a warning label by a European Commission-funded verifier. Same speech, two legal regimes, sorted by institutional loyalty rather than by content. The Charter of Fundamental Rights of the European Union promises freedom of expression to “everyone” and equality before the law to all; the DSA-EMFA architecture quietly replaces “everyone” with “the accredited”.
None of this is speculation about intentions. Nor does it require a conspiracy — only incentives, every one of which points the same way. When Commissioner Thierry Breton sent public warnings to X on the eve of politically sensitive events, the Commission itself had to disown him: The letter’s “timing and wording”, its spokesman admitted, had been coordinated neither with the President nor with the College. The machine, we were shown, can be aimed by one ambitious official.
And the intentions are now in writing. The “European Democracy Shield”, unveiled on November 12, 2025, declares its purpose with disarming candour: To protect the “integrity of the information space” through robust notice-and-takedown and universal labelling of speech as verified or suspect. It pledges to strengthen the “prominence of media services of general interest”, to demonetise disinformation, and to prop up traditional media against the platforms where citizens — especially the young — actually form their opinions. The Shield points to the DSA as a key instrument. The strategy, in its practical effect, is a strongly moderated European internet in which official narratives are amplified and inconvenient ones suppressed. Whoever still doubts what the DSA is for should simply read what its authors say it is for.
The machine can be dismantled
Yet I write this without despair, because the structure is more fragile than it looks. President Karol Nawrocki’s veto of January 9, 2026 stopped Poland’s DSA implementation bill — one that had already stalled for years at the drafting stage — in the name of freedom of speech: Proof that a Member State can simply decline to build its wing of the machine. The fact-checking chapter of the Code has been hollowed out by the exit of Google and Microsoft, and by Meta’s abandonment of third-party fact-checking in the United States — a retreat Brussels is struggling to keep out of Europe. X resists openly. Washington — the administration and the Congressional majority — now treats European speech regulation as a trade and human-rights issue. Codes can be exited; guidelines can be withdrawn; regulations can be revised. What politics assembled, politics can dismantle — and the coalition for dismantling is, for the first time, real.
Until June 26, stakeholders may still tell the Commission what its trusted flagger guidelines should say — and what they must never become. The Ordo Iuris Institute will make its submission. The standard we will defend is the old European one, written by the Strasbourg court half a century ago: Freedom is also for the ideas that “offend, shock or disturb”. A Union that no longer believes this is not defending democracy. It is defending itself from its citizens.
Jerzy Kwaśniewski is attorney-at-law, President of the Ordo Iuris Institute for Legal Culture in Poland
