Prospects of reform in the EU

Horizontal

• Regulation (EU) 2022/2065 (Digital Services Act)

Vertical

• 2018 Amendment to the Audiovisual Media Services Directive
• 2019 DSM Copyright Directive
• 2021 Regulation on Terrorist Content Online
• Child Sexual Abuse Material Regulation proposal

Digital Services Act (DSA)

16/12/20 Proposal →→ 27/10/22 Official Publication →→ 17/02/24 Applicability of the Regulation

Goal of the Proposal:

• Update the e-Commerce Directive framework
• give a general background for the liability of ISPs for online content, to be complemented by specific sectorial legislation

Liability exemption and prohibition of general monitoring obligations

• Art. 12 ECD (Mere conduit) → Art. 4 DSA
• Art. 13 ECD (Caching) → Art. 5 DSA
• Art. 14 ECD (Hosting) → Art. 6 DSA
• Art. 15 ECD (Prohibition of general monitoring obligations) → Art. 8 DSA

The new European “Good Samaritan” Clause

→ Article 7 (Voluntary own-initiative investigations and legal compliance): Providers of intermediary services shall not be deemed ineligible for the exemptions from liability referred to in Art. 4, 5 and 6 solely because they, in good faith and in a diligent manner, carry out voluntary own-initiative investigations into, or take other measures aimed at detecting, identifying and removing, or disabling access to, illegal content, or take the necessary measures to comply with the requirements of Union law, including the requirements set out in this Regulation

Obligations and guarantees for ISPs

→ new obligations for ISPs: new “due diligence obligations for a transparent and safe online environment”

→ notice and action mechanisms (Art. 16):

• Provision applicable to all providers of hosting services
• Obligation to put in place mechanisms to allow individuals and entities to notify the presence of potentially illegal content
• Such notification will be considered sufficient to trigger the provider’s liability for the content
• For online platforms, notifications from “trusted flaggers” will need to be processed immediately (Art. 22)

→ 4 levels of duties:

• All ISPs

• Hosting providers

• Online platforms

• VLOPs and VLOSEs

• Very large platforms

• Online platforms

• Hosting services

• Intermediary services

→ old guarantees for ISPs: general monitoring or active fact-finding obligations (Art. 8). There is no general obligation to monitor the information which providers of intermediary services transmit or store, nor actively to seek facts or circumstances indicating illegal activity shall be imposed on those providers

→ old obligations for ISPs: orders to act against illegal content (Art. 9). This says that “providers of intermediary services shall inform the recipient of the service concerned”. With a “statement of reasons, the possibilities for redress that exist, and a description of the territorial scope of the order”

→ old freedoms of ISPs: terms and conditions (Art. 14). The text states that intermediary service providers must act diligently, objectively, and proportionately when enforcing restrictions. They must respect the rights and legitimate interests of all parties, especially the fundamental rights of service recipients—such as freedom of expression, media pluralism, and other rights under the Charter.