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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


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


I. Aim and Approach


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.


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.


1. What is the Rationale for Updating the e-Commerce Directive?


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.


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.


2. How Does the DSA Proposal Interact with the e-Commerce Directive?


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.


The current EU legal framework regulating digital services is under­pinned, first and foremost, by the e-Commerce Directive.


Hier direkt weiterlesen im juris PartnerModul IT-Recht

Verlag Dr. Otto Schmidt vom 02.05.2021 16:49

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