The European Commission does seem to be moving towards stricter rules for large online platforms. After the draft impact assessment on systemic platforms and the black/grey/white list of unfair practices, EUROPE has now turned its attention to the draft impact assessment on intermediary liability, which underpins the revision of the E-Commerce Directive.
A process that is making its way
As a reminder, the European Commission plans to present a Digital Services Act by the end of the year (2 December). This will be based on an update of the competition rules, a revision of the E-commerce Directive and ex ante regulation for platforms acting as gatekeepers (see EUROPE 12497/9). In its impact assessment on gatekeepers, the Commission seems to focus on online intermediation services (including marketplaces and social networks), search engines, operating systems and cloud services (see EUROPE 12572/15).
In the impact assessment on platform liability, the Commission seems to favour asymmetric measures with reinforced obligations for very large platforms and increased oversight at EU level. It is based on the 3,000 responses received from the public consultation (see EUROPE 12497/9) and the European Parliament’s draft reports (see EUROPE 12569/5).
However, it does not call into question the key principles of the E-Commerce Directive (2000/31/EC), namely the limited liability regime, the country of origin principle and the prohibition of generalised supervision.
The Commission’s preferred scenario
The impact study puts three options on the table, from the least interventionist to the most interventionist. And it is the latter option that is favoured by the Commission at this stage.
Obligations. The Commission envisages due diligence obligations for all platforms targeting Europe, with exemptions for small businesses (less than 2 million euros revenue per year and less than 20,000 monthly users in Europe). It instructs marketplaces to control and prevent fraudulent companies from using their services to sell illegal or dangerous products and content (Know Your Business Customer). Very large platforms, which reach a significant number of European users, would have increased transparency obligations (moderation and amplification of content and online advertising activities). It also speaks of an “adaptive and reactive” framework for co-regulation actions.
Liability. Here, the Commission proposes to address the current paradox linked to the notification and withdrawal procedure, whereby a platform that takes proactive measures risks losing its exemption from liability by removing these disincentives. It also suggests introducing clarifications related to the status of intermediaries for core services (content distribution networks, registrars and registries) and a distinction between different hosting services (infrastructure hosting, search engines and online platforms).
Governance. Option 3 retains the creation of a new committee to oversee and support the clearing house between Member States and issue guidance on new challenges. It also envisages technical assistance to support Member States’ inspection and surveillance activities.
Link to the impact assesment report on platform liability : https://bit.ly/30nW0iS (Original version in French by Sophie Petitjean)