EUROPEAN UNION
relatively straightforward legal protection. It allowed them to avoid liability for illegal content on their platforms, provided they did not have knowledge of the illegality and acted swiftly to remove such content upon becoming aware. In order to achieve greater harmonization, the DSA incorporates the existing liability exemption rules of the e-Commerce Directive with minimal changes. 3 However, the DSA now also sets up specific processes as to how intermediaries are notified of illegal content by the authorities 4 , and imposes the requirement that users should have the ability to point to illegal content through accessible, user-friendly, means which allow for the submission of notices exclusively by electronic means. 5 Hosting services (including online platforms) are subject to specific obligations in this respect and must facilitate the submission of sufficiently precise and adequately substantiated notices. As such, these hosting service providers are made responsible for ensuring that the notices adhere to certain qualitative requirements so that they can be considered to give rise to actual knowledge or awareness, triggering the liability in respect of the specific item of information concerned, and allowing a diligent provider of hosting services to identify the illegality of the relevant activity or information without a detailed legal examination. Upon receiving a valid notice, intermediaries are deemed to have actual knowledge of the content’s illegality and must act swiftly to remove or disable access to it. Take-down of illegal content also comes with communication requirements both towards the reporter of the content and towards the impacted party. There is also a requirement under the DSA for online platforms to offer an appeals process for at least six months over decisions to remove/disable content,
suspend or terminate services, or suspend/terminate user accounts. The DSA also sets up a system of so-called “trusted flaggers” 6 – entities which have demonstrated particular expertise and competence – to report illegal content to which platforms will have to react with priority. These trusted flaggers can be appointed by Digital Services Coordinators, the national authorities in charge of supervising and enforcing the DSA in Member States. In practice, this is not currently happening effectively in all Member States. Entities subject to the DSA have specific reporting obligations with regard to content moderation undertaken under the provisions of the DSA. 7 This relates to information such as how many notices were received from Member State authorities or by trusted flaggers, the type of illegal content in question, response time, etc. So, while the DSA does not require intermediaries to monitor information or engage in proactive fact-finding, as was already the case under the e-Commerce Directive, it does add new compliance layers in the form of specific notification procedures. Non-compliance can result in penalties 8 of up to six percent of the service provider’s annual income or turnover, making it imperative for intermediaries, and especially for online platforms, to develop the necessary infrastructure to meet the DSA’s demands. Protection of minors A topic that will sound particularly familiar to operators of gambling or lottery services, is the protection of minors. The DSA specifically focuses on this issue, knowing that online platforms like social media apps are very frequently used
Market (‘Directive on electronic commerce’) 3 Although the DSA specifically targets platforms, it also applies to service providers such as those providing mere conduits services, caching services, or hosting services (all of which are also within the scope of the e-Commerce directive). Technically, The DSA replaces the provisions on liability from the e-commerce directive by incorporating them into the DSA itself. The DSA deletes art. 12-15 of the e-Commerce Directive and constructs references to those provisions as references to art. 4, 5, 6 and 8 of the DSA. 4 Art. 9-10 of the DSA 5 Art. 12 and art. 16 (for hosting services) of the DSA 6 See art. 22 of the DSA 7 See e.g. art. 15 of the DSA, art. 24 of the DSA for online platforms, and art. 42 of the DSA for VLOPs and VLOSEs 8 See art. 52 of the DSA.
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IMGL MAGAZINE | SEPTEMBER 2024
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