European Commission proposal for new Digital Services Act
What’s in the European Commission’s proposal for a new Digital Services Act (DSA)?
The key takeaway
The European Commission is preparing a proposal for a DSA which is expected to recalibrate the way in which online platforms are responsible for the content on their services.
The background
Newly elected president Ursula von der Leyen of the European Commission has announced a sweeping digital strategy for member states for 2019-2024. The strategy focuses on three pillars: digital enablement and protection for individuals (including AI regulation and broadband availability), fair competition and sustainability. As Ms von der Leyen states: a DSA “will upgrade our liability and safety rules for digital platforms, services and products, and complete our Digital Single Market.” The DSA would serve as a basis for an upgrade of the E-Commerce Directive, which was adopted in 2000 and new rules on platforms.
The development
The European Commission has indicated that a public consultation will be held in the first quarter of 2020 and more legislative proposals will be published at the end of 2020. No wording has been put to paper yet, however the following issues are likely to feature in the Commission’s plans for the DSA:
- liability: The DSA is expected to upgrade liability and safety rules for digital platforms, services and products to incentivise companies to remove unlawful and harmful content. Under the DSA, platforms may be subject to further obligations in the form of “notice and take down” orders
- the question of anonymity online: The ability to provide anonymous content online is important for several reasons. However, one of the many issues with harmful and unlawful content on online platforms is that the content provider is very difficult to identify and usually resides outside of the jurisdiction of EU Member State courts. It is seen as a great benefit if platforms were able to identify those content providers who are providing the harmful and unlawful content
- enforcement: The E-Commerce Directive does not provide an enforcement mechanism, therefore it is likely that the DSA will introduce this to both strengthen the internal market and ensure coherent enforcement across the EU
- good samaritan protection for platforms: This notion protects platforms when they take voluntary measures to restrict access to or availability of certain content, but also protects them when they miss such content. The rationale for this protection is to encourage platforms to take voluntary proactive measures to address unlawful and harmful content made on their services.
This pan-EU initiative seeks to regulate social media platforms, search engines, video gaming platforms, and online marketplaces. This has gained enormous public and media attention as platforms have been pressed to act on their own accord to remove and monitor unlawful and harmful content. The proposals drawn up in the DSA will affect not only the entire technology sector, but potentially any service relying on user-generated content to any extent.
Any practical tips?
Act now! Businesses need to engage now to ensure that the new Commission understands the wide range of services that they are proposing to regulate. Businesses should also assess their platforms and implement plans and procedures to tackle unlawful and harmful content displayed across their services.