DSA: Disappointing IMCO vote, but a genuinely trustworthy online environment is still possible
Members of the IMCO committee approved today the committee report on the proposal for a regulation on a Single Market for Digital Services (Digital Services Act-DSA) amending the
eCommerce directive from 2000.
Laura Houlgatte, Chair of Creativity Works!, a leading coalition of the cultural and creative sectors in Europe, said: “The IMCO report is a missed opportunity to translate the declaration “What is illegal offline is also illegal online” into concrete actions. However, we remain hopeful that the plenary vote may rectify the matter by strengthening the due diligence obligations and ensuring all online players act responsibly for the online ecosystem to flourish and benefit everyone – society, consumers and businesses”.
All eyes are on the plenary vote and we very much hope that the European Parliament will show
ambition and address the main shortcomings of the IMCO report.
1. A broader scope for Know Your Business Customer obligations is essential to increase transparency and would be tremendously beneficial to EU citizens and consumers. All online intermediaries should also ensure the traceability of their business customers. Such an obligation would deter illegitimate businesses and ensure they no longer enjoy a “licence to operate illegally” online. Know Your Business Customer (KYBC) obligations should not be limited to online marketplaces and should be applicable to all in the interests of a level playing field.
2. The DSA should not grant new liability privileges. Enhancing the accountability of
search engines can be achieved through the introduction of effective due diligence
obligations, not by granting them a broad and unjustified “safe harbour”. Recital 27a
suggests the possible qualification of search engines as “caching”. Categorising search
engines as “caching” providers would remove the incentive for search engines to fight
against illegal content online.
3. A notice and stay up would be a step backwards and contradict the ambition of the
DSA. Article 14 (3a) would allow illegal content to stay online for the duration of a “legal
assessment”, creating a loophole that could easily be abused for online services not to
remove illegal content expeditiously as required by their liability regime. Instead,an
expeditious notice and stay down mechanism (i.e.,permanent removal) for notified
content, with a focus on relevant services should be introduced. This unique legislative
opportunity should not be missed.
4. Trusted flaggers status should be available to all entities with expertise and a track
record of accurate notices. “Trusted flaggers” means the end of bottlenecks for the
removal of illegal content, freeing up more time to deal with disputed content.Many right
holder organisations and individual companies are currently treated as trusted flaggers,
as a result of their expertise and track records of accurate notices. These two qualities
should prevail as criteria to award “trusted flagger” status. There is no need for an
additional “collective interest” requirement which would restrict individual companies’
access to trusted flaggers status.
Consumers and businesses deserve a safe and trustworthy online environment. Europe can still deliver it.
Find a pdf version here.