Greening Lex Informatica: An Exploration of Climate Risks as Systemic Risks under the Digital Services Act

The internet infrastructure and business models are proving to be resource-intensive, which is having a detrimental impact on the climate and the environment. Furthermore, a small group of dominant service providers control nearly all online activity. This thesis explores how the Digital Services Act (DSA) can contribute to reducing climate risks through its systemic risk regulation framework. More specifically, it focuses on direct climate risks relating to material environmental impacts, for example, stemming from emissions from platform operations and infrastructure. Placing this discussion within the context of evolving environmental protection within the EU through sustainable as well as digital regulation, and the developments of fundamental rights in this sense, shows the broader context which is related to the way in which environmental protection can be incorporated into platform regulation under the DSA. Additionally, by examining the potential of systemic risk provisions for addressing direct climate risks, this thesis enriches the ongoing discourse on how to define and scope systemic risks under the DSA. Through a textual analysis of Article 34, it is shown that the DSA can integrate the assessment of climate risks under its provisions, even though it does not explicitly refer to them. The broader regulatory context of the DSA, the online versus offline debate, and the broad nature of systemic risk support this finding. Furthermore, an examination of published systemic risk reports highlights the current and likely future relevance of including environmental factors, particularly in the context of public health and consumer protection. The analysis also sheds light on practical ways to put the DSA framework into practice, addressing climate risk mitigation under Article 35 DSA, and builds upon the broader framework that encompasses relevant actors and offers practical solutions, including delegated acts, voluntary standards, and codes of conduct. By holding the largest platforms accountable, the DSA can address the direct climate risks associated with their activities. By building on fundamental rights, such as the right to private life, and by drawing on the broader EU regulatory framework of the Charter and the DSA’s provisions, a shift towards environmental protection through platform regulation can be put in place.