Value of Non-Binding ODS Decisions under DSA Article 21

The Case for Out-of-Court Justice Under the DSA

The Digital Services Act (DSA) introduces new tools for users, including the right to seek a non-binding ODS decision under DSA Article 21 from an independent and impartial body. This comes at a time when online platforms such as social media networks and marketplaces make billions of moderation decisions in Europe — removing posts, suspending accounts, labelling content, and more. Until recently, users had limited ways to contest these outcomes, since going to court was often impractical for everyday disputes.

These out-of-court dispute settlement bodies represent one of the DSA’s most significant innovations. Designed to operate independently and transparently, they provide users with an accessible way to challenge platform decisions without the costs of litigation. By offering impartial review and promoting accountability, ODS mechanisms contribute to a more equitable distribution of power between platforms and their users.

There is, however, an important limitation: the outcomes of these proceedings are not binding on platforms. In other words, if an out-of-court dispute body rules in favour of a user, it may recommend corrective action but cannot compel compliance. This article examines why these decisions are non-binding, the practical value they hold, and what steps users can take when platforms disregard them.

What Are Out-of-Court Dispute Settlement Bodies under the DSA?

The DSA’s out-of-court dispute settlement bodies are essentially a form of alternative dispute resolution embedded in the digital ecosystem for content moderation issues. Think of them as independent “appeal courts” (though not courts in the legal sense, as they don’t have the same powers as judges or formal courts of law), they are certified independent bodies that review cases and make recommendations, for users who disagree with a platform’s decision about their content or account. These bodies must be certified by national authorities – specifically, by the Digital Services Coordinator (DSC) in each EU member state, which is a regulator tasked with overseeing the DSA’s implementation. 

When a user has a grievance – for example, imagine a small business owner who posts a product review or promotional content, and the platform removes it, saying it’s “spam” or “misleading. The business owner disagrees and believes the content follows the policies and terms of the platform – they have a few options under the DSA. They can use the platform’s internal complaint system (which the DSA requires platforms to have), they can go directly to court (as always), or they can bring the issue to a certified out-of-court body. The user can choose any certified body in the EU that deals with the type of issue in question. The platform, once notified, is obliged to engage in good faith with that body to resolve the dispute.

Importantly, the DSA ensures this process is accessible and affordable. For users, the procedure will be free of charge or at most a nominal fee in almost all cases.  Platforms generally have to cover the costs, especially if the decision ends up favoring the user. The idea is to remove financial barriers so that ordinary users can get a fair, swift review of content decisions without needing a full courtroom trial. 

An example scenario could be: Maria, a travel blogger, posts a video reviewing a hotel on a popular video-sharing platform. In her video, she shares both the highlights and few honest criticisms about her stay. A short time later, the platform removes the video due to an alleged policy violation. Maria believes this is a mistake that could ruin her livelihood. Under the DSA, Maria can file a complaint with the video-sharing platform’s own system. If that doesn’t fix the issue, she can escalate to an independent dispute body – at little to no cost – instead of immediately resorting to a lawsuit. This shows how the mechanism opens a new avenue to contest online platforms content moderation decisions. 

Non-Binding Decisions: What Does That Mean?

After the out-of-court dispute settlement body reviews the case, it will issue its decision or finding. For instance, the body might decide the platform was wrong to remove Maria’s content and recommend that it be reinstated. Here’s the key point: the platform is not legally forced to follow this decision. Unlike a court judgement, the body’s decision is non-binding – essentially a recommendation. Article 21 of the DSA explicitly states that the certified body “shall not have the power to impose a binding settlement of the dispute on the parties.” In plainer terms, the body can say who is right or wrong, but it can’t enforce its solution on the platform or the user.

For users, hearing “non-binding” might sound worrying – does it turn the process into a paper tiger? It’s true that if a platform chooses not to comply, the body can’t directly sanction them or undo the platform’s action. However, as we’ll discuss, these recommendations still carry weight and can influence outcomes in practice. It’s also worth noting that the user is never giving up their right to go to court by using this mechanism. You can treat the out-of-court body’s decision as a strong piece of evidence or advice with an expert legal rationality for free, but if you’re unsatisfied, you retain the option to pursue the matter judicially at any point.

Why Are the Decisions Not Binding?

Many people wonder: if the goal is to protect users and fix wrongful content removals, why didn’t the DSA make these decisions binding on platforms? The history of the law and policy debates reveals several reasons:

1) Avoiding “Private Courts”: Lawmakers were cautious about establishing what could be seen as extrajudicial content courts with the power to overrule platforms. During the drafting of the DSA, some experts and Member States warned that giving binding power to these bodies would, in effect, create a parallel judicial system outside the regular courts.

2) Must-Carry and Platform Rights: If an out-of-court body could compel a platform to reinstate content, that effectively becomes a “must-carry order.” Platforms argued this could interfere with their ability to uphold their own standards and duties (like removing harmful content). Also, if a platform strongly believes certain content violates its terms or the law, a binding decision could force it to keep that content online against its will. Moreover, platforms have rights too – including the right to seek judicial review. A binding outcome might “prevent platforms from obtaining redress” or appealing a bad decision. The central debate is about how to balance the rights of users with the rights of platforms. Just as users have the right to challenge a content removal they believe was unfair, platforms also have the right to defend their content moderation decisions.

3) Legislative Compromise and ADR Tradition: The initial proposal of the European Commission for the DSA actually had these out-of-court decisions as binding (this was in draft Article 18(1) of the proposal). But EU legislators changed that in negotiations. Several EU countries – notably Finland – raised concerns that a binding decision by a non-judicial body could “impede access to a judge” in their legal system. 

The final text aligns with the existing ADR Directive (2013/11/EU), which generally ensures alternative dispute resolutions (like consumer arbitration) are voluntary or at least not imposed on parties without consent. In short, the DSA opted to encourage out-of-court settlements but stopped short of making them an absolute authority.

The DSA struck a balance: it created a new way to resolve disputes, but kept it flexible and voluntary at the enforcement stage. This approach tries to empower users without completely overriding platforms’ autonomy or the traditional court system.

The Value of Non-Binding Decisions for Users

Even though the outcome isn’t automatically enforced, an out-of-court decision in the user’s favor can be very powerful. Here’s why these decisions matter:

1) A Second Chance at Justice (Fast and Free): For the first time, users have a practical way to appeal a platform’s decision and get a fresh review by an impartial expert. This is much more accessible than a lawsuit. The DSA expects the process to be swift and fair – normally the body should decide within 90 days (with a possible extension for complex cases). There’s little to no cost for the user, so everyone – not just those who can afford lawyers – can seek redress. This lowers the barrier that previously left many users stuck with whatever the platform decided.

2) Independent Evaluation and Explanation: The out-of-court body is separate from the platform. It will consider the evidence and the platform’s terms of service or relevant laws, then issue a reasoned decision. Win or lose, the user gets a clearer explanation of the decision than they might get from the platform’s internal process,(it will outline which specific rule was infringed, why it was applied in the particular case, and as a result, the user may even avoid the problem in the future) . For example, if you complained about a removed post, the body might clarify whether the post was actually illegal or against the terms, referencing the rules and facts. This is educational for the user and creates a written record of the dispute.

3) Persuasive Power and Platform Compliance: While the platform isn’t forced to comply, in many cases these decisions will carry persuasive authority. Platforms have an interest in showing regulators and the public that they handle disputes fairly. If an independent, certified body says the platform got it wrong, the platform may choose to voluntarily implement the recommendation – for instance, restoring the content or account – to demonstrate good faith. In essence, a non-binding decision can still change the outcome. Especially for major platforms under the spotlight, ignoring a well-founded decision could look bad. The expectation is that, at least in a significant number of cases, platforms will follow the recommendation, leading to the user’s issue being resolved without court.

4) Building Evidence for Court or Regulators: Suppose the platform does ignore the decision. The user now has something they didn’t have before: an independent assessment supporting their position. This can be extremely valuable if the user decides to pursue the matter in court. A judge is not bound by the out-of-court body’s finding either, but it can serve as supporting evidence or expert opinion to bolster the user’s claim that the platform’s action was unjustified. Similarly, if the user files a complaint with regulators, the out-of-court decision provides documented details and reasoning about the dispute. It’s no longer just the user’s word against the platform’s – a neutral party weighed in on it.

In summary, the dispute is no longer merely a matter of the user’s word against the platform’s. A      credible, independent third party has reviewed the facts and issued a well-reasoned opinion. This alters the accountability dynamic, requiring the platform to justify its actions not only to the user, but also, if necessary, to legal or regulatory authorities.

5) Empowerment and Awareness: On a more personal level, using this mechanism can make users feel heard and empowered. Previously, if a platform took down your post and rejected your appeal, you’d hit a dead-end. Now, having a neutral referee evaluate the case can validate users’ concerns. Even if the outcome doesn’t force the platform’s hand, the process itself brings more transparency. Over time, the data from these disputes (which the DSA requires to be reported) will shed light on how often platforms might be making mistakes and how they respond. This transparency is valuable for policy discussions and for users to understand their rights.

What Can Users Do If the Platform Doesn’t Comply?

The scenario of a platform ignoring an out-of-court decision is a crucial one to address. This does not mean that the user is left without any further possibilities to seek redress.

1. Understand the Limits: First, recognize that a platform choosing not to implement the recommendation is not breaking the law outright at that moment. The DSA does not demand blind obedience to every out-of-court decision. So, if you find yourself with a favorable decision that the platform sets aside, know that this was contemplated as a possibility. It’s frustrating, but it doesn’t mean the process was pointless – it means you might need to take an extra step to enforce your rights.

2. Use the Decision in Court: Your strongest formal option is to bring a lawsuit against the platform (assuming the matter is significant enough). For example, you might sue for breach of contract (if the platform wrongly applied its terms of service to you) or for violation of your rights. The out-of-court body’s written decision will be helpful in court. It’s not a guarantee of victory, but it can serve as evidence that an expert third party agreed the platform was wrong. A judge could find that analysis persuasive. At the very least, it shows the issue was serious enough that an independent entity sided with the user.

3. Complain to the Digital Services Coordinator (DSC): Every EU country has a DSC to enforce the DSA. Under Article 53 DSA, users have the right to lodge a complaint with their DSC if they believe a platform isn’t complying with the DSA. If a platform ignores an out-of-court decision, you could argue that the platform might be failing to “engage in good faith” with the dispute resolution process as required. A single case of non-compliance might not prompt regulatory action, but if a pattern emerges, authorities could investigate. Notably, if a Very Large Online Platform habitually dismisses the outcomes of these disputes, the European Commission and national regulators will take interest. Repeated bad behavior could be seen as a systemic issue under the DSA, potentially leading to fines or other enforcement measures down the road.

It’s worth noting that the DSA also builds in oversight of the dispute bodies themselves. They must report annually to regulators, and regulators will keep an eye on how effective their decisions are. If it turns out that platforms ignore, say, 90% of non-binding decisions, that will become known and will certainly prompt discussions on whether stronger enforcement is needed. In that sense, this mechanism is somewhat experimental – it relies on transparency and accountability. 

Beyond Enforcement: The Persuasive Weight of ODS

The out-of-court dispute settlement mechanism of the DSA represents a new experiment in platform governance and user rights. It acknowledges a reality: expecting every user to go to court for every wrongful takedown is not practical. By introducing an independent review step, the DSA aims to level the playing field a bit between users and powerful online platforms. These non-binding decisions are a novel tool – they don’t have the immediate punch of a court order, but they offer speed, expertise, and a pathway to resolution that didn’t exist before.

For users, the message is empowering: you can challenge platform decisions, and you might even get them overturned. Even if the platform doesn’t listen, you’re not back to square one – you have that decision in your hand, and you can take it further. For platforms, the writing is on the wall: content moderation is no longer a closed, self-regulated domain. There will be oversight, and ignoring that oversight comes with risks, if not immediately then in the long run through regulatory and reputational consequences.

In the end, the success of this system will depend on how all parties behave. If users provide clear evidence and relevant information, they strengthen the review process and efficient assessments by the out-of-court. If platforms generally respect and implement the recommendations, it could significantly improve user trust and correct mistakes. If they routinely ignore them, pressure will build for the EU to reinforce the mechanism. As of now, the non-binding nature is a cautious choice, but it doesn’t mean these decisions lack value or impact. They are a stepping stone to justice: giving users a voice and a written vindication, and giving platforms a chance to voluntarily do the right thing. And if they don’t, users have gained a stronger footing to seek redress elsewhere.