Three substantive reports, eight opinion reports. The Digital Services Act promised by the European Commission by the end of the year is definitely attracting a lot of interest in the European Parliament. With most of the documents now published, work is expected to officially start in parliamentary committee next week.
The consultation planned by the European Commission for the first quarter has been postponed due to the coronavirus (see EUROPE 12364/3). It should be launched in April or, at the latest, before the end of May, we are told.
“Copyright 2.0”
This reform is indeed the ‘von der Leyen’ Commission’s main digital project. A sort of “copyright 2.0”, this reform, which unleashed passions during the previous legislature, should modernise the ecommerce directive in light of the rise of digital services.
In its initial draft industrial strategy, the Commission referred to the idea of tackling “the dissemination of illegal content [by setting specifically targeted due diligence rules, editor’s note] as well as for the lack of transparency”, in the field of online advertising, for example (see EUROPE 12420/8). The strategy on Europe’s digital future, on the other hand, talks about introducing ex-ante rules to ensure that markets based around large platforms acting as gatekeepers remain fair and contestable (see EUROPE 12429/5).
The scope is therefore wide and the issues sensitive. Parliament intends to join the battle in three areas: consumer protection, civil and commercial law, and fundamental rights.
All that is currently missing is the draft opinion by Patrick Breyer (Greens/EFA, Germany) for the Internal Market Commission (IMCO).
Work to begin in parliamentary committee
Work will officially begin next week. On Monday 4 May, the IMCO Committee will consider a draft report by Alex Saliba (S&D, Malta). On Thursday 7 May, the Committee on Legal Affairs (JURI) will consider a draft report by Tiemo Wölken (S&D, Germany). The Civil Liberties Committee, which also took up the dossier (INI), is expected to take a little more time, as the contribution by Kris Peeters (EPP, Belgium) has only just been finalised. Previewed by EUROPE, it should be published in the next few days.
Limited liability preserved
All of the contributions focus on illegal online content and the need to introduce more transparency.
In general, the three rapporteurs on the substance seem to agree that the principle of limited liability provided for in the ‘eCommerce’ Directive should not be changed. The “safe harbour” provision allows platforms considered as mere hosts not to be held responsible for illegal content, provided that they remove such content after having been informed of it (the “notice and action” principle).
This is where Alex Saliba and Tiemo Wölken propose to act. Alex Saliba is calling for detailed provisions on the exchange of notifications and their evaluation, as well as clarification of the criteria for distinguishing a simple host from an “active” platform.
Tiemo Wölken is proposing a clear framework that would be integrated into the terms and conditions of “platforms that host content”.
Ex ante rules?
The two men have different views on the issue of ex ante rules raised by the European Commission (see EUROPE 12429/5).
For Alex Saliba, large platforms with significant network effects act de facto as “gatekeepers” and should have special responsibilities. Others should exercise due diligence in terms of transparency and information.
Tiemo Wölken, for his part, opposes “any kind of automatic content pre-checking or other automatic ex ante content moderation tools”. On the other hand, he believes that platforms with significant market power should contribute to a fund to support independent dispute settlement bodies.
Kris Peeters, on the other hand, talks about a guarantee (‘accountability’) for content moderation and proactive measures to tackle the emergence of illegal content (see EUROPE 12428/7).
Enhanced surveillance
All three rapporteurs mention the creation of new bodies to ensure better application of the rules.
Kris Peeters is calling for the creation of an independent EU body to verify that an algorithm does not amplify illegal content and to impose proportionate penalties, if necessary, as well as to provide a structured analysis of the removal of illegal content at the EU level.
Alex Saliba mentioned a European body and a network of implementing bodies. For his part, in addition to dispute settlement bodies, Tiemo Wölken speaks of a competent EU agency that would check compliance with transparency criteria, as well as the notification and withdrawal procedure, and would be empowered to impose fines.
It should be noted that none of the three reports mentioned the inclusion of hate speech in the future Act. In his report, Kris Peeters merely states that some national measures (in France and Germany) on this issue may lead to fragmentation.
Calendar
MEPs from the relevant parliamentary committees now have the opportunity to submit their amendments to the draft reports: on 12 May in the IMCO Committee, on 19 May in the JURI Committee and in mid-June in the LIBE Committee.
Committee votes are expected to take place in September and in the plenary in October. (Original version in French by Sophie Petitjean)