The forthcoming Digital Services Act (DSA), scheduled for the end of the year, could tackle dangerous content as well as illegal content. However, given the difficulty of defining it, it should be subject to specific, more flexible rules. The European Commission suggested this at a press briefing on Monday 8 June.
“We are not precluding out rules for dangerous content as well, but we are more or less sure that the two categories of content [dangerous and illegal, editor’s note] don’t warrant the same approach”, said an official of the institution, justifying a problem with the definition.
The E-Commerce Directive is 20 years old
Monday 8 June marks the 20th anniversary of the agreement between Parliament and the EU Council on the Electronic Commerce Directive (2000/31/EC). This major text had been introduced to abolish the borders to the provision of digital services. However, “there have been several times when we have had proof that these rules are incomplete, that they have grey areas and that they need to be modernised”, commented another European source.
At this point, all options are on the table. Last week, the European Commission launched three public consultations to prepare its package of measures on digital services: a consultation on the revision of the e-commerce directive, a consultation on the introduction of ex-ante rules for structuring platforms and a consultation linked to the creation of a new competition instrument (see EUROPE 12497/9).
Taking advantage of the celebration of the 20th anniversary of the Electronic Commerce Directive, the platforms’ lobby Edima has recalled its position in this reform, namely to maintain the key principles of the text (limited liability regime, country of origin principle and prohibition of generalised control) (see EUROPE 12399/9).
Capturing new services
At a press briefing, the European Commission reiterated its intention to change the scope of EU rules, with a view to “capturing important services, such as Alibaba, Tiktok or WeChat, which are not established in Europe but have an impact” in the EU. The Commission also gave the example of Cloudfare, after the events in Charlottesville, United States, in 2017.
The Commission also indicated that it intends to address platform accountability and algorithm transparency. “Platforms need to take more responsibility. We’re going to clarify some of the things they would be obliged to do, without necessarily losing the exclusion of liability”, said another Commission source.
In response to a question from EUROPE, these sources indicated that the idea of including dangerous content (such as ‘extreme selfies’, as was once fashionable among young people) in the scope of the new legislation was still being considered. “Instead of the ‘notification and action’ mechanism, which does not seem to be appropriate”, it is possible rather to imagine a “system of dialogue with the platforms”, a “regulatory dialogue in which the platforms are not the only arbiters”, knowing that the idea here is not to harmonise definitions.
Ex-ante rules
As indicated in the public consultation, the European Commission also foresees specific ex-ante rules for structuring platforms that act as gatekeepers and whether or not they allow third-party access to the market. It is currently working to identify the markets where such platforms exist, the characteristics of these gatekeepers, and a list of ‘do’s and don’ts’.
“The catalogue of behaviours that we are trying to restrict or even prohibit in some cases is being developed”, the official explained.
Busy Day in Parliament
On the same day, the European Parliament’s Internal Market Committee discussed the draft opinion of Dita Charanzová (Renew Europe, the Czech Republic) on trade rights and that of Adam Bielan (ECR, Poland) on fundamental rights in the context of the DSA.
On this occasion, on behalf of the EPP group, Edina Tóth (Hungary) said that, on the issue of liability and advertising, advertisers should not be held responsible for the content, as opposed to intermediaries such as the producers of the advertisement. (Original version in French by Sophie Petitjean)