Digital Services Act: Deepening the internal market and clarifying responsibilities for digital services

Following the publication of the Digital Services Act (DSA), a proposal by the European Commission that intends to strengthen the EU internal market and clarify responsibilities and liabilities for digital services, CERRE presents its report “Digital Services Act: Deepening the internal market and clarifying responsibilities for digital services“.

This research report  is comprised of the preparatory Issue Paper, the non-attributable summaries of the workshop discussions held during the second half of 2020 with different stakeholders, and the resulting CERRE recommendations for the DSA, which were released separately earlier in December 2020.

The report, which is part of a CERRE TMT project on the DSA and DMA, addresses the following crucial questions:

• Exactly what services should be in scope?
• How will responsibility be attributed with limited liability?
• What should harmonisation of notice and take-down look like?
• How will it be enforced?

The CERRE research team identifies three priorities for the upcoming DSA:

1. Every platform active in Europe should have a representative in the EU.
2. Rules should apply to all platforms in a proportionate way.
3. Public authorities should play their part too, the responsibility must not lie solely on the platforms.

Scope of the Digital Services Act

In order to ensure that no company active in the European market can avoid its rules, the DSA should apply to services provided to individuals or businesses in the EU.

• If online service providers are not established in the EU despite providing services to individuals or businesses in the EU, they should be required to designate a representative, as done in the GDPR.
• There should be a mechanism for determining jurisdiction where there are claims by multiple member states.
• The DSA should also reduce the list of conditions under which member states can derogate from the country of origin principle in line with the AVMSD.

Responsibility with limited liability

Many online platforms have put in place voluntary measures to proactively detect and remove illegal content. This CERRE report argues that procedural accountability for platforms should now be an obligation written into European law.

• Procedural accountability is crucial, and rules aimed at achieving this should be harmonised and grounded in principles of appropriateness and proportionality. Therefore, digital platforms that, by their nature (user base, functionality, reach, role), pose a greater risk should be subject to more obligations than lower risk ones, and the DSA should encourage, not impede, the development of start-ups and scale-ups in Europe.
• The DSA should clarify the conditions under which safe harbour can be lost so as to avoid disincentivising services from taking preventive action against illegal content.
• There should be an EU-wide legal basis for imposing additional specific preventive measures on services.

Harmonised notice and take-down

When the e-Commerce Directive (ECD) was drafted, it was not assumed that notice and takedown of illegal content would be largely conducted by automated means and by the services themselves, yet this is now the case. The DSA should:

• Set out standards for notice and takedown that are designed to cover automatic and human means.
• Include rules aimed at protecting users from harms related to illegal content and at protecting their fundamental rights as individuals and collectives.
• Institute requirements for alternative dispute resolution to be made available in each member state and in all necessary languages.

Enforcement of the Digital Services Act

National regulators will have to play an active role in ensuring the enforcement of these rules.

• Codes of conduct should be encouraged and the DSA should set criteria for how they are established and monitored.
• There should be obligations aimed at ensuring regulatory authorities have sufficient access to information with which to assess services’ procedures and compliance.
• The DSA should establish the means for coordination among member states’ regulatory authorities relying as much as possible on existing mechanisms.

The DSA and DMA package will be discussed in series of ‘rendez-vous’ hosted by CERRE. These events will delve into specific aspects of each proposal with key players from the online platforms and telecommunications industries, national regulators, policy makers, European startups, international stakeholders and academics. The first of these ‘rendez-vous’ took place on 19 January 2021, deep-diving into the objectives and criteria for large gatekeeper platforms.

Read our report on the Digital Markets Act (DMA).