New in CRi
The Proposal for an EU Digital Services Act (Savova/Mikes/Cannon, CRi 2021, 38-45)
The debate on how to regulate digital intermediaries and safeguard a safe digital environment for their users is rapidly evolving. While jurisdictions around the world are grappling with questions on how to ensure a level-playing field for tech players of all sorts and sizes, Europe has recently taken a significant step forward in the regulation of digital platforms, with its long-term objective of serving as a global point of reference and blueprint for others to follow. The present article focuses on one of the EU’s new initiatives – the Digital Services Act – and offers a practical analysis of the key takeaways and expected interactions with several Member States’ parallel national initiatives which aim to impose new obligations for digital intermediaries.
A closer look from a European and three national perspectives: France, UK and Germany
INHALTSVERZEICHNIS:
I. Aim and Approach
1. What is the Rationale for Updating the e-Commerce Directive?
2. How Does the DSA Proposal Interact with the e-Commerce Directive?
3. DSA and Intermediary Liability: Key Takeaways
II. Scope of the Proposal
1. Extraterritorial Scope
2. Material Scope
III. DSA Dissection – What Does the Proposal Say?
1. Transparency and Advertising
2. Traceability of Trader Users and Illegal Goods
3. Content Moderation
4. Very Large Online Platforms
5. Enforcement and Fines
IV. DSA and the GDPR – Expected Impact?
V. What Comes Next?
1. The French Anticipation of DSA Rules on Aspects Such as Online Hate Speech
2. Initiatives on Disinformation in the UK via “Online Harms” Legislation
3. Initiatives in Germany and Interplay with NetzDG Law
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I. Aim and Approach
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On 15 December 2020, Europe took a first step towards in its major policy reboot and becoming a pioneer in the regulation of digital platforms and marketplaces with the announcement of its far-reaching proposals – the Digital Markets Act (the “DMA Proposal”) and the Digital Services Act (the “DSA Proposal”) – as part of its so-called “digital package”. While the DMA is intended to create a framework to regulate the behaviour of large online platforms that are considered as “gatekeepers” by means of a set of “ex ante” obligations, the DSA aims to regulate the way that providers of online intermediary services interact with their customers and users, and their obligations in respect of harmful or illegal content.
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The DSA Proposal is intended to update the Directive 2000/31/EC on electronic commerce (the “e-Commerce Directive”) and introduce new rules and enhanced responsibilities for online intermediaries and platforms. In the meantime, and since the two new proposals will still have to pass through the ordinary legislative procedure and the adoption by the co-legislators (which may take anywhere between 18 months and several years), the current regime imposed by the e-Commerce Directive will continue to apply.
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1. What is the Rationale for Updating the e-Commerce Directive?
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The world today is a very different place compared to twenty years ago: since the adoption of the e-Commerce Directive, new and innovative services have emerged, traditional markets and sectors have been disrupted, which in turn have changed the lives of citizens and transformed the way they communicate, connect, consume and do business. This has also given rise to new risks and challenges for society and individuals.
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The DSA Proposal is aimed at addressing these issues and equipping the European Union as whole with modernised and harmonised rules that will facilitate the free provision of digital services within the European internal market.
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2. How Does the DSA Proposal Interact with the e-Commerce Directive?
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Rather than repealing the e-Commerce Directive in its entirety, the DSA Proposal only intends to replace certain specifically listed provisions1 of the Directive and to coexist with other unrepealed provisions. Repealed provisions of the Directive are mostly transposed into the DSA Proposal by using the same wording and principle-based rules as formulated in the Directive.
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The current EU legal framework regulating digital services is underpinned, first and foremost, by the e-Commerce Directive.
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Verlag Dr. Otto Schmidt vom 02.05.2021 16:49
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