Overlaps – Services and Harms in Scope: A Comparison Between Recent Initiatives Targeting Digital Services

The international legal context for content moderation has evolved over the last two decades. There are international norms for ‘platforms’ that are defined as providers of digital services that connect participants in multisided markets, set the rules for such interactions and make use of algorithmic systems to collect and analyse data and personalise their services.

Against this background, this new CERRE report compares four pieces of adopted and draft legislation that deal with illegal and harmful content on digital services: the rules on video-sharing platforms (VSPs) contained in the Audiovisual Media Services Directive (AVMSD), the Terrorist Content Regulation (TERREG), the Digital Services Act (DSA) and the UK’s proposed Online Safety Bill (OSB). The new study compares these pieces of legislation from two perspectives: services and the harms in scope.

Given the global nature of digital services, each of the laws studied foresees an extra-territorial effect to make sure that providers with some sort of connection with their jurisdiction comply with the rules. The mechanisms differ however, creating a layer of complexity for the regulators who will need to enforce the rules and for the platforms that will need to comply.

The EU initiatives do not contain rules on the designation of services, except for the DSA in relation to very large online platforms (VLOPs) and very large online search engines (VLOSEs), which means that the overwhelming majority of services in scope will need to comply with the rules of the DSA without being formally identified or designated. In contrast, the OSB sets out a system whereby Ofcom will need to establish and maintain a register with the services that fall within the different tiers of services.

The EU and UK initiatives refer to categories of services but the categories differ, leading to overlaps and grey zones. The DSA has the broadest scope of application since it covers the technical internet layer whereas the other pieces of legislation do not. The OSB is also wide and is striking as it covers pornography publishers (on top of user-to-user and search intermediaries). Gaming presents a notable gap across the board as it is not mentioned in either of the initiatives (but could be covered), and it is already not entirely clear if the more holistic pieces of legislation (the DSA and OSB) cover the ‘metaverse’ or other future developments.

The DSA stands out as having the widest scope in terms of illegal harms whereas all the other initiatives are narrower in scope. Whereas as the AVMSD and TERREG each deal with specific types of illegal content, Illegality in the DSA is defined by reference to any breach of EU or national law, provided the national law is in line with EU law. This could present challenges in terms of implementation. An independent and transparent process to settle potential conflicts between national and EU legislation may need to be established by the Commission or in subsequent legislation. The OSB creates an obvious hierarchy by distinguishing between illegal content and priority illegal content. Content in the priority category mostly derive its illegality from criminal offences in existing legislation, but the OSB also creates several new communications offences.

The DSA has the widest scope of legal harms for VLOPs and VLOSEs in that it requires assessment of systemic risk, and mitigation, of an extensive list of harms to individual users and to wider society, including risks to fundamental rights. Its approach acknowledges the collective nature of many harms and risks to public institutions, opening the door to positive obligations on platforms. The protection of minors is a concern in all initiatives (except in TERREG).  Harm to well-being is emerging as new category of harm in the AVMSD, the DSA and the OSB. This is particularly evident in the standards for commercial communications in the AVMSD, and in the DSA’s attention to risks to public health and of gender-based violence, and the measures to prevent harm to individuals’ mental and physical health.