The Slovenian Presidency of the Council of the European Union has focused on the third chapter of the Digital Services Act (DSA) in a compromise text of which EUROPE has obtained a copy. The first two chapters of the compromise text were presented to the EU Council’s Working Party on Competitiveness and Growth in early September (see EUROPE 12787/12).
In this new compromise text, the EU Council Presidency is working on the exemption from liability for hosting services. While the latter are obliged to remove illegal content as soon as they become aware of its existence, the Slovenian authorities have made several clarifications.
Thus, the document stresses, actual knowledge of the existence of such content cannot be considered as a reason to conclude that a hosting service is generally aware that its service is used to share illegal content.
However, the Slovenian Presidency explains, the exemption cannot apply in cases where a provider of the online market place does not allow traders to determine the basic elements of a contract, such as sales conditions or prices.
In addition to hosting services, the new compromise document also states that intermediary service providers should not be subject to general supervisory obligations.
Furthermore, injunctions against infringing content should not require a service provider to set up, at its own expense, a filtering system which would involve “general and permanent surveillance in order to prevent future infringements”.
On the other hand, “such injunctions could require a hosting service provider to remove information which it stores, the content of which is identical or equivalent to the content of information which was previously declared to be unlawful”, the Presidency adds.
Still on the subject of injunctions, the new compromise text intends to give the capacity to issue such injunctions to national authorities, rather than to Member States. They would also be obliged to inform the national authorities of other EU countries.
In the same manner, the scope of an injunction should be limited to what is necessary to achieve the objectives set. Especially in a cross-border context, the document insists, where “the effect of the decision should be limited to the territory of the issuing Member State, unless the illegality of the content derives directly from Union law”.
On the side of the platforms, they would be entitled to refuse to engage in dispute resolution where the same dispute concerning the same content has already been resolved - or is under consideration - by another dispute resolution body.
See the compromise text: https://bit.ly/3zgGvI5 (Original version in French by Thomas Mangin)