The Slovenian Presidency of the Council of the EU finished work on Wednesday 6 October on the new version of its compromise text on the first two chapters of the proposed Digital Services Act (DSA) (see EUROPE 12787/12). The document will be submitted to the EU Council's Working Party on Competitiveness and Growth on Thursday 14 October.
In addition to confirming that search engines form part of the list of intermediary service providers, the new version of the text also addresses the exemptions from liability of these providers.
On this subject, the Council Presidency mainly clarifies the situations in which this exemption does not apply. This would be the case “where an intermediary service offers its service with the main purpose of facilitating illegal activities, for example by making explicit its purpose to facilitate criminal activities and that its services are suited for that purpose”.
However, the Presidency of the Council of the EU says that the mere provision of an encrypted transmission service or a system that makes it impossible to identify the user should not be sufficient to qualify collaboration as “deliberate”.
Responsibilities of online marketplaces also reviewed
Still on the subject of exemptions of responsibilities, the new compromise document also returns to the framework for online transactions.
On this topic, the Council Presidency notes that a number of online marketplaces present information on transactions in such a way that the consumer might think that it has been provided by the marketplaces themselves, “even if that may in reality not be the case”.
As a result, the new version of the compromise text adds, marketplaces would not be able to claim exemption from liability in situations where the identity of a trader is not clearly displayed, where the marketplace retains the trader's data until after the transaction has been concluded or where it markets the product or service under its own name.
Furthermore, the text also considers general monitoring obligations and recalls that intermediary service providers should not be subject to them.
In this sense, the new version of the compromise paper proposes that any monitoring obligation that would require such providers to conduct a comprehensive search for illegal content - involving excessive workloads or unreasonable resources and measures - should be considered a general monitoring obligation.
“ This should not prevent monitoring obligations of a specific nature”, the text states.
View the compromise text: https://bit.ly/3BzCbWw (Original version in French by Thomas Mangin)