Codes of Conduct in EU Digital Regulation and AI Policy: The Potential and Risks of Soft Law Tools

The EU’s 2022 Digital Services Act (DSA) is an ambitious piece of legislation. Articles 34–35 DSA establish a risk assessment and mitigation regime for the largest online platforms, which is intended to play a key role in addressing systemic issues like the effects of platform design and recommendations, structural discrimination, and the dissemination of harmful content. However, many open questions remain about how this regime will be implemented in practice. In this context, Articles 45–47 DSA provide for codes of conduct to clarify and supplement these obligations. Codes of conduct could therefore significantly shape the DSA’s implementation, and ultimately its effectiveness. They could also serve as a model for codes of conduct under the 2024 Artificial Intelligence Act (AIA). In this chapter, we provide a brief doctrinal analysis of the functions served by codes of conduct in the DSA. We then consider the potential benefits and disadvantages of using soft law codes to supplement the DSA’s hard law framework. Finally, using the 2023 contretemps between X (formerly Twitter) and several EU commissioners over X’s participation in the Code of Practice on Disinformation as a point of departure, we consider the question of whether participating in such codes is really voluntary. This analysis highlights that codes of conduct are tools that EU politicians can deploy for political purposes—a dynamic that has once again been illustrated during the negotiations surrounding the AIA.