Abstract
AbstractOn 15 December 2020, the European Commission published its proposal for the Digital Services Act, which is expected to be adopted before summer 2022. It carries out a regulatory overhaul of the twenty-one-year-old horizontal rules on intermediary liability in the e-Commerce Directive and introduces new due diligence obligations for intermediary services. Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this article, we look specifically at the intersection of the Digital Services Act with the regime for online content-sharing service providers (OCSSPs) set forth in Article 17 of Directive (EU) 2019/790 on Copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap, as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the Digital Services Act will apply to OCSSPs insofar as it contains rules that regulate matters not covered by Article 17 CDSM Directive, as well as specific rules on matters where Article 17 leaves a margin of discretion to Member States. This includes, to varying degrees, rules in the Digital Services Act relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where Article 17 CDSM Directive contains specific (but less precise) regulation on the matter. From a normative perspective, this might be a desirable outcome, to the extent that the Digital Services Act aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might help us to achieve that goal.
Highlights
Our analysis concludes that the Digital Services Act will apply to online content-sharing service providers (OCSSPs) insofar as it contains rules that regulate matters not covered by Article 17 CDSM Directive, as well as specific rules on matters where Article 17 leaves a margin of discretion to Member States
This would have the result of forcing platforms that qualify as OCSSPs and very large online platforms (VLOPs) to align their copyright redress mechanisms with their remaining illegal content-moderation systems covered by the DSA, thereby increasing their level of procedural ex post safeguards in this area
We have looked at the relationship between the horizontal DSA rules and the sector-specific rules for OCSSPs in Article 17 CDSM Directive from a legal doctrinal perspective
Summary
Online platforms provide the main points of access to information and other content in the digital age, whether through “search engines, social networks, micro-blogging sites or video-sharing platforms”.1 these platforms bring economic and social benefits,. There are additional legal and empirical angles from which to address the underlying objective of the legal instruments under analysis As noted, both the CDSM Directive (in a more targeted, sector-specific manner) and the DSA (in a general horizontal approach) aim to curb the increasing power and “digital dominance” of Big Tech companies, primarily by subjecting them to additional liability and obligations for the illegal (and even the harmful) content they host.[13]. We conclude with the key findings of our analysis and suggestions for clarifications in the further legislative process (Section IV)
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