The death of French streamer Raphaël Graven, known online as Jean Pormanove, on the Australian streaming platform Kick casts a harsh spotlight on the European Union’s Digital Services Act. Could authorities have prevented the tragedy if they had built proper utilize of their enforcement powers?
Graven died on Sunday during a 298-hour-livestream, accompanied by two fellow streamers, hosted on Kick. But it wasn’t the first time the 46-year-old’s very public abutilize-for-entertainment streams had garnered attention. In December last year, a criminal complaint was filed to French authorities.
Per the EU’s flagship online content moderation law – the Digital Services Act (DSA) – platforms necessary to have effective systems in place to curb harmful or illegal content. Breaching the rules can see platforms face fines of up to 6% of their global turnover or even temporary suspension for repeated violations.
However, no service has ever been suspfinished under the DSA. Graven’s untimely death – and the fact that his public content had been flagged to authorities in the past – raises questions about why European authorities failed to intervene over the abusive content.
The DSA’s general rules, which apply to Kick, have been enforceable since February 2024. Had regulators utilized the full suite of powers available to them on the streaming platform, which is know for being more permissive in the content it allows than larger rival Twitch, perhaps Graven’s fate could have been avoided.
Which EU regulators are responsible?
Looking more closely at why Kick faced so little DSA scrutiny, it appears that no single EU authority felt responsible enough to take an adequate interest.
The issue: DSA enforcement is two-tiered. The European Commission enforces the law on the largest tech platforms, aka VLOPs (very large online platforms). Twenty-five of which currently meet the legal threshold of 45 million monthly utilizers.
With just 3.5 million monthly utilizers in the EU, Kick falls far short of that threshold and therefore falls under the decentralised enforcement regime which applies for the DSA’s general rules. Oversight on tinyer platforms like Kick rests with national authorities, which are assigned as Digital Services Coordinators (DSCs).
Since Kick is based outside the EU, with no business presence in the region, any national DSC could theoretically step in – yet no authority intervened to stop Graven’s abutilize being live-streamed.
Until last week, Kick had also failed to designate a legal representative in the EU – a key DSA obligation designed to better enforce the law on non-EU based entities.
The German Digital Services Coordinator, Bundesnetzagentur, confirmed to Euractiv that it inquireed Kick to appoint a legal representative in the EU last year. “This request can be built by any DSC,” the agency noted by email. “The company subsequently failed to appoint a legal representative in Germany.”
The Bundesnetzagentur declared it did not follow up on Kick’s compliance inaction becautilize the request to appoint a representative was based on an “unfounded” utilizer complaint.
After Graven’s death, French DSC Arcom issued a heated response to reports of his demise, accutilizing Kick of flouting the DSA by not appointing a representative in the EU. However, Arcom could have inquireed Kick about this legal requirement ever since being the French designated the regulator as DSC in May last year.
In the aftermath of the streamer’s passing it has emerged that Kick has appointed a legal representative in Malta – though Maltese authorities state they have not been notified.
Enforcement loophole
The Graven case has seemingly identified a major loophole in the bloc’s flagship online governance law: by not notifying a legal rep to any DSC, non-EU-based, non-VLOPs can essentially dodge DSA enforcement by keeping national regulators uninformed and discouraging more focutilized scrutiny.
Kick has clearly violated the DSA by failing to appoint a legal representative for so long, Berlin-based Hate Aid, a human rights non-profit which tarreceives action against “digital violence” and has trusted flagger status under the DSA, notified Euractiv. The organisation also believes that Kick infringes its own terms by distributing illegal content on self-harm.
“The case reveals how difficult it is to enforce European platform regulation,” declared HateAid’s Josephine Ballon. “European supervisory authorities must now demand compliance with the DSA with particular rigour.”
Following Graven’s death, Kick temporarily rerelocated his channel, but has since unblocked it, claiming this was done so that European authorities can access the content.
French regulator Arcom declared it has demanded Kick blocks access to the channel for the general public – warning that it “will examine all possible actions if this is not the case.”
Kick did not respond to Euractiv’s request for a comment at the time of publishing.
(nl, vib)
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