Platform Regulation: Ex Ante Tools and Strategies in the Regulatory Toolkit

This Chapter provides a brief comparison of the risk-based regulatory approaches adopted in the Digital Markets Act and the Digital Services Act. One of the main characteristics of both legislative instruments is the normative choice to tie compliance duties proportionately to the type of risks and severity of impact that online platforms create. The DSA and the DMA are examples of complex and polycentric regulatory regimes that shift the regulatory role towards non-state actors as surrogate regulators which are required to develop their own systems of internal control and risk management. In addition to specifying social outputs, the enforcement of the DMA and the DSA reflects a primary characteristic of meta-regulation: the regulated platforms are obliged to improve their internal management in order to achieve public goals. The requirement that platforms develop effective risk management strategies and compliance schemes on their own entails the possibility of undesired risk-enhancing effects of the risk-based regulation and the mechanisms it mandates. This Chapter argues that the internalisation of the platforms’ responsibility for management of systemic risks and compliance with due diligence obligations call for more substantive rules to provide benchmark against which to measure performance.