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Between preservation and clarification – Verfassungsblog


The Digital Providers Act (DSA) accommodates exceptional new guidelines on issues like content material moderation, danger evaluation and enforcement. While such guidelines stands out as the most eye-catching in present discourse, it shouldn’t be forgotten that guidelines on legal responsibility stay a key function of the DSA’s strategy to platform regulation.

Recital 16 explains that the DSA seeks to protect the middleman legal responsibility framework of the e-Commerce Directive (ECD), but in addition to make clear sure components, having regard to the case regulation of the Courtroom of Justice of the EU (CJEU). This essay examines the steadiness that the EU legislator sought to strike between these two concerns, i.e. preservation and clarification. It does so focusing particularly on the impact given to the CJEU’s case regulation concerning the ECD’s middleman legal responsibility framework.

When assessing the foundations in query, it’s evident that the DSA’s emphasis has been on preservation. Nevertheless, as this essay will present, that doesn’t imply that nothing in any respect has modified. In reality, a better look reveals that in some respects a notable evolution has taken place. That holds true, specifically, in relation to the foundations regarding the contested problems with how lively a service supplier will be with out disqualifying a priori for the legal responsibility exemptions and of ‘Good Samaritan safety’.

Continuity, confirmations and improvements

Articles 4, 5 and 6 of the DSA comprise virtually literal copies of the conditional legal responsibility exemptions present in Articles 12, 13 and 14 ECD for ‘mere conduit’, ‘caching’ and ‘internet hosting’ companies respectively (collectively referred to as ‘middleman companies’ within the DSA). This copy/paste strategy is the clearest instance of the EU legislator searching for to make sure continuity in relation to legal responsibility guidelines.

As well as, the DSA accommodates numerous provisions which might be primarily confirmations of what was already recognized. Take for example Recital 17 DSA, which states that the DSA’s guidelines don’t provide a constructive foundation for legal responsibility. Thus, the place the circumstances of the legal responsibility exemptions haven’t been met, the middleman service supplier involved isn’t essentially liable. Quite, whether or not such legal responsibility exists is to be assessed individually beneath the relevant guidelines of EU or nationwide regulation. This already adopted from the CJEU’s 2010 ruling in Google France (see para. 107).

Recital 17 additionally clarifies that the DSA’s legal responsibility exemptions relate to any sort of legal responsibility and to any sort of unlawful content material. In different phrases, they apply in precept whatever the nature (civil, legal or administrative; direct or oblique), origin (EU or Member State) and particular area (defamation, mental property, hate speech, and many others.) of the ‘underlying’ regulation that makes the content material in query unlawful and topic to legal responsibility. While solely implicit within the CJEU’s case regulation accessible thus far, this has by no means been essentially contested (see F. Wilman, The Duty of On-line Intermediaries for Unlawful Consumer Content material within the EU and the US, 2020, pp. 20-21; with additional references).

Clarifications just like the above ones are hardly spectacular. But they’re nonetheless useful. Together with them will increase authorized certainty and facilitates the sensible utility of the DSA. In addition they assist guarantee continuity within the transition from the ECD to the DSA.

On the different finish of the spectrum, the DSA accommodates some liability-related provisions which might be largely new. One might suppose, specifically, of the particular rule of Article 6(3) DSA concerning the legal responsibility beneath client safety regulation of specific sort of internet hosting service suppliers; specifically, on-line platforms that enable customers to conclude distance contracts with merchants (merely put: B2C on-line marketplaces). Admittedly, this rule takes account of prior CJEU case regulation, specifically Wathelet. Nevertheless, that case didn’t take care of the ECD’s legal responsibility exemptions. Thus, while Article 6(3) constitutes a notable innovation, it can’t be mentioned to consequence from earlier case regulation. Quite, the availability needs to be seen as an expression of the EU legislator’s intention to higher shield customers (see Recital 24 and Artwork. 1(1) DSA).

Service suppliers’ lively function

Neutrality because the core criterion

The primary of the foundations on which this essay concentrates pertains to the scope of the middleman legal responsibility regime. The central subject right here is how lively a service supplier could also be in offering its service for that service to nonetheless qualify as an middleman service falling inside the scope of that regime. The difficulty arises particularly in relation to the legal responsibility exemption for internet hosting companies, contained at the moment in Article 14 ECD and within the close to future in Article 6 DSA.

The CJEU has expressed itself fairly extensively on the matter, most notably in Google France (para. 112-114), L’Oréal v. eBay (para. 112-113) and YouTube (para. 105-106; be aware that this latter judgment dates from after the adoption of the DSA proposal). On this case regulation, the CJEU formulated the core criterion: to qualify, service suppliers ought to take a impartial place in relation to their customers’ content material. That signifies that they need to not play an lively function of such a sort as to provide them data of or management over that content material. This case regulation has now been codified in Recital 18 DSA.

The CJEU’s case regulation is contested, nonetheless. It’s primarily based on the applying of Recital 42 of the ECD concerning the exercise in query being “of a mere technical, computerized and passive nature” to internet hosting companies. It is a studying that many take into account mistaken (e.g., Peguera, p. 682). Others argue that the enterprise fashions of many internet hosting service suppliers imply that they don’t seem to be impartial (e.g., Savin, p. 2). That being so, it’s unsurprising that not all people is thrilled with this choice to codify it (see e.g., Buiten, p. 371). Earlier than concluding that this choice was mistaken, it’s nonetheless price noting the next three factors.

Refined modifications

First, there are a number of refined modifications. Most notably, while the DSA repeats most of the ECD’s recitals regarding the legal responsibility guidelines, it doesn’t repeat Recital 42 ECD. Particularly, Recital 18 DSA mentions mere technical and computerized processing when giving impact to the core criterion of neutrality, however it doesn’t check with the controversial requirement of passivity. In different phrases, the DSA follows the CJEU’s ruling in L’Oreal v. eBay, which doesn’t check with Recital 42 ECD and passivity both, fairly than Google France (and YouTube), which do.

As well as, Recital 19 DSA emphasises the totally different nature of mere conduit, caching and internet hosting actions. In doing so, it follows McFadden (para. 61-63). This means that the identical criterion could also be used for all three forms of companies, however that it needs to be utilized taking account of the variations between them. Moreover, Recital 21 DSA concerning the service supplier being “under no circumstances concerned” with the person’s content material stays relevant, like beneath Recital 43 ECD, solely in relation to mere conduit and caching. That implies {that a} supplier of internet hosting companies can be concerned, to some extent, with that data, with out essentially disqualifying itself from the legal responsibility exemption.

All this confirms what might already be deduced from the CJEU’s core criterion itself: middleman service suppliers – and particularly internet hosting service suppliers – can play an lively function to some extent, offered the function isn’t equivalent to to provide them data of or management over the content material that they transmit or retailer for his or her customers. Thus, passivity isn’t required and it’s inaccurate to solid the dialogue concerning the scope of Article 6 DSA when it comes to ‘lively or passive’.

Software

Second, it’s affordable to imagine that retaining the CJEU’s core criterion additionally means retaining the weather of its case regulation that few discovered problematic. That’s, the statements coping with the precise utility of the criterion. Assume specifically of the clarifications offered in L’Oréal v. eBay (para. 115-116) that storing affords on the market, setting the phrases of service, being remunerated for the service and offering normal data to customers don’t make a internet hosting service supplier (within the case at hand, a web based market) ‘too lively’.  The ruling additionally clarifies that this may be totally different, nonetheless, the place a supplier optimises the presentation of the affords on the market or promotes these affords.

On this regard, it’s price allowing for that introducing a completely new criterion – aside from the query what that criterion needs to be – may properly have led to renewed uncertainty concerning the utility of existent case regulation. Neutrality could have its shortcomings, equivalent to that it affords little inherent readability. But it doesn’t appear essentially unsuited for distinguishing middleman service suppliers, that are topic to the DSA’s particular guidelines on legal responsibility, from content material suppliers, that are topic to the ‘abnormal’ guidelines of legal responsibility for the content material that they supply.

Totally different context and objective

Third, the idea of ‘middleman service supplier’ could properly change by advantage of its transposition from the ECD to the DSA. Underneath the ECD, being certified as such solely affords benefits for service suppliers; particularly the provision, in precept, of the legal responsibility exemption.

Underneath the DSA that’s totally different. Mentioned benefits stay, however qualifying as an middleman service supplier additionally means being topic to a spread of due diligence obligations, that are set out in different components of the DSA (specifically, its Chapter III). It’s exhausting to think about {that a} service supplier might escape the applying of these obligations just by making itself ‘too lively’.

This distinction could not solely have an effect on how eager service suppliers are on qualifying as an middleman service supplier, it might additionally alter the interpretation of the idea itself. For it’s settled case regulation that phrases of EU regulation are to be interpreted within the gentle of not solely their wording, but in addition their context and the targets pursued. Because the latter have modified – see, for example, the DSA’s goal of defending basic rights, together with client safety (Article 1(1) DSA)) – this will properly have an effect on the CJEU’s interpretation of the idea in future circumstances introduced beneath the DSA, regardless of the idea having been worded and defined equally as beneath the ECD.

‘Good Samaritan’ safety

What’s not new…

The second rule to be thought of right here is the ‘Good Samaritan’ clause, laid down in Article 7 DSA. It holds, in brief, that middleman service suppliers are to not be deemed ineligible for the legal responsibility exemptions of Articles 4, 5 and 6 DSA solely as a result of they both take voluntary own-initiative measures to deal with unlawful content material, or take measures to adjust to EU or nationwide regulation.

This rule is expounded to the earlier subject: middleman service suppliers could also be hesitant to take such voluntary measures out of worry of being seen as too actively concerned with their customers’ content material, which, in flip, might imply that they’re excluded from the scope of the DSA’s legal responsibility exemptions. Article 7 goals to make clear that such worry is unfounded, offered nonetheless the middleman service supplier involved acts in good religion and diligently. As defined in Recital 26 DSA, on this method the clause seeks to take away a disincentive for the taking of such voluntary measures.

As regards the taking of such voluntary measures, Article 7 corresponds to what the CJEU said in YouTube (para. 109). In that judgment, The CJEU held that the truth that a service supplier voluntarily implements technological measures aimed toward detecting sure unlawful (within the case at hand, copyright-infringing) content material among the many content material uploaded by its customers doesn’t imply that it performs an lively function giving it data of and management over the content material inside the that means of the abovementioned case regulation. The European Fee had earlier already made comparable statements in non-binding paperwork, equivalent to its 2018 Suggestion on unlawful content material on-line (Recital 26).

As regards the taking of measures to adjust to the regulation, this looks as if little greater than stating the apparent. That mentioned, some may nonetheless discover it useful to be reassured on this method that compliance with, for example, the DSA’s due diligence obligations doesn’t result in the service supplier in query turning into ‘too lively’. That conclusion would additionally appear to observe, by the way in which, from the assertion in its Recital 41 that the DSA’s due diligence obligations are unbiased from the query of legal responsibility.

… and what’s

Nevertheless, some components of Article 7 DSA are new; most notably, the circumstances of fine religion and diligence. There are good causes for together with these circumstances. Particularly, voluntary measures taken by middleman service suppliers will not be socially useful per se. Even when sincerely meant to deal with unlawful content material, they will trigger appreciable harm if not enacted diligently. For example, the large-scale removing of content material that’s wrongly thought of unlawful involves thoughts.

The circumstances of fine religion and diligence are clearly open norms. Which may be exhausting to keep away from, contemplating the various totally different conditions during which Article 7 might apply. Nonetheless, the ensuing flexibility comes on the expense of readability. It will likely be principally as much as the CJEU to find out, in time, what these circumstances entail precisely.

Though subsequently not completely clear, it will be unfair to say that Article 7 merely swaps the uncertainty as to whether or not such voluntary measures will be taken for uncertainty as to how these measures are to be taken. That’s so particularly in view of clarifications offered in Recital 26 DSA, for example as regards service suppliers taking affordable measures to make sure that any automated instruments used are as dependable as potential. In essence, plainly respecting the diligence necessities discovered elsewhere within the DSA, mixed with a dose of frequent sense and reasonableness, ought to usually go a good distance in guaranteeing that the circumstances are met. That holds true all of the extra so on condition that setting the bar too excessive would indicate the danger that Article 7 will fail to realize the abovementioned goal.

Different criticisms

Different criticisms of Article 7 (see e.g. Kuczerawy, 2021) appear much less properly based. For example, there is no such thing as a motive to contemplate that the precise success of the voluntary measures taken in tackling unlawful content material is related on this context. That’s to say, good religion and diligence fairly clearly don’t indicate a requirement that the measures should have been totally profitable. In the case of tackling unlawful content material, 100% effectiveness is neither reasonable nor essentially required (cf. UPC Telekabel Wien, para. 58-63).

Moreover, it’s true that Article 7 doesn’t handle the chance that an middleman service supplier could acquire precise data or consciousness of unlawful content material, inside the that means of Article 6 DSA, as a consequence of the voluntary measures that it enacts. However that’s for good motive and is unlikely to behave as a severe disincentive. For the place that happens, the middleman service supplier has an apparent plan of action to keep away from shedding the advantage of the legal responsibility exemption. Specifically, expeditiously eradicating the unlawful content material in query. On this regard, it needs to be recalled {that a} internet hosting service supplier solely dangers shedding mentioned profit if a particular merchandise of unlawful content material, of which it obtains data however which it might have did not take away expeditiously, is clearly unlawful, within the sense that the illegality will be established with out a detailed authorized examination (cf. YouTube, para. 111-116; these components of the judgment relate to notices, however the identical is more likely to maintain true in relation to own-initiative investigations; see additionally Article 14(3) DSA).

Conclusion

The DSA retains the important thing options of the ECD’s middleman legal responsibility regime, however it additionally accommodates a number of clarifications. The latter vary from uncontroversial statements to largely new guidelines, with an attention-grabbing group of provisions – notably these on the service suppliers’ lively function and ‘Good Samaritan’ actions – someplace in between. The clarifications have a tendency to construct on current CJEU case regulation and can, little question, over time generate new case regulation, fleshing out what they entail exactly. That being so, while the DSA’s guidelines on issues like due diligence, danger assessments and enforcement could also be most eye-catching, it will be a mistake to disregard the refined but noteworthy evolution that the DSA brings about for liability-related issues.

This essay has been written in a private capability and not one of the statements made therein will be attributed to the creator’s employer.

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