Brooklyn Journal of International Law


João Tornada

First Page



Deliberative democracies are based on an ideal process of speech and dialogue that fosters an “uninhibited, robust, and wide-open” public discourse sphere. In cyberspace, social networks and search engine platforms largely operate with recommender systems that tailor content according to the users' interests and online behavior (“profiling”), thus segregating them from different points of view (“bubble effect”). While this personalization of content is particularly efficient to promote commercial goods and services, when it comes to information of common interest, especially on political matters, it undermines consensus-building dialogue and threatens democratic ideals. The theory of a free “marketplace of ideas” justifies greater concern for the free flow of information of public interest and exposure to conflicting content when compared to commercial nature. This Article argues that the concept of a free “marketplace of ideas” and information of public interest cannot be treated in the same way as a marketplace of commercial and entertainment content. Unfortunately, the EU's Digital Services Act (DSA) does not make this distinction and treats social networks, search engines and marketplaces in the same way. The DSA, which is expected to be revolutionary in of protecting the users' fundamental rights online, only addresses the dangers of recommender systems specifically as a catalyst for the “systemic risks” posed by illegal content, and not as cause for polarization. In light of the above, this Article will only address the dangers of a lack of diversified content and information sources (“information bubbles”) to the democratic process, leaving aside the issue of illegal content or legal but harmful content being amplified by recommender systems. Particularly, this Article will assess whether this new framework complies with the applicable principles, in particular the principle of proportionality.