Fundamental Rights in Out-of-Court Dispute Settlement under the Digital Services Act

This paper argues that certified out-of-court dispute settlement (ODS) bodies under Article 21 of the Digital Services Act (DSA) should apply a structured fundamental rights review to platform content moderation, operationalised through the concept of case salience. Situating ODS within the DSA's broader regulatory architecture-particularly Articles 14(4), 17, and 20-the paper contends that Article 21 provides the procedural complement to Article 14(4)'s substantive duty to enforce terms of service "diligently, objectively and proportionately, with due regard to fundamental rights." Rather than extending the Charter of Fundamental Rights of the European Union (CFR) horizontally in a direct sense, ODS bodies give effect to Charter-conforming statutory obligations owed by platforms, interpreted in light of Article 52(1) CFR. Drawing on jurisprudence from the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR), and national courts, the paper shows how freedom of expression and information interacts with countervailing rights-such as the freedom to conduct a business, privacy and data protection, and human dignity-in the context of online moderation. It proposes an intensity-of-review model: a deeper, meritsbased proportionality analysis for high-impact cases (e.g. political speech, account suspensions, issues of systemic relevance), and a lighter, procedural-sufficiency check for routine disputes. The paper emphasises that ODS remains non-judicial and operates without prejudice to Article 47 CFR and the availability of national court remedies. Over time, reasoned ODS decisions could evolve into a body of soft law, enhancing consistency and transparency in platform accountability. Ultimately, ODS bodies under the DSA represent a novel experiment in multi-actor rights protection. Their success will depend on whether they can reconcile accessibility, efficiency, and rights-based rigour, ensuring that content moderation in Europe evolves in line with the constitutional values of the Charter.