Digital Services Act – A Status Update

Digital technology is changing people’s lives. Under the heading “A Europe fit for the digital age”, the von der Leyen Commission’s digital strategy aims to make this transformation work for people and businesses, while helping to achieve its target of a climate-neutral Europe by 2050. The European Commission is determined to strengthen the EU’s digital sovereignty and set standards, rather than following those of others – with a clear focus on data, technology, and infrastructure.

As part of this strategy, in March 2020, the European Commission published its plans for the Digital Services Act, an ambitious legislative package to shape the digital future of Europe. The package aims to create a modern legal framework for digital services, strengthening the Digital Single Market and ensuring that digital service providers in the EU act responsibly to mitigate risks emanating from the use of their services, respecting EU rights and values and protecting fundamental rights.

The new Digital Services Act focuses on modernising the current legal framework for digital services in two important ways:

• clear rules on responsibilities of digital services to address the risks faced by their users and to protect their rights. The objective is to establish a modern cooperation for the supervision of platforms, which could guarantee an effective enforcement mechanism; and
• ex ante rules covering large online platforms acting as gatekeepers, which now set the rules of the game for their users and their competitors. The beneficiary of those rules should be the consumers, who would have the widest choice as the Single Market remains competitive and open to innovations.

Even though drafts of the Digital Services Act have not yet been published, the content of the Digital Services Act is being extensively speculated upon. Based upon certain leaked documents, we can give an overview of the key elements that are currently on the table.

The Digital Services Act’s main purpose is to replace the e-Commerce Directive of 2000, which is outdated and no longer adequately deals with the challenges of today’s digital environment. Illegal trade on the internet has significantly increased and platforms have taken on a major role in our daily lives. Therefore, the European Commission has recognised the need to modernise the current legal framework to ensure the safety of users online and to allow innovative digital businesses to grow, while at the same time respecting the basic principles underpinning the current legal framework of the e-Commerce Directive.

A key change would concern the liability rules and, more specifically, the wish of the European Commission to impose more liability on digital services providers for content available on their platform. The idea would be to distinguish between various types of providers and, in some cases, to impose ‘proactive measures’ to avoid direct liability. Such measures could include upload filters, as required by the recently adopted Directive on Copyright in the Digital Single Market. The current e-Commerce Directive prohibits imposing a general monitoring obligation on online providers for user generated content, making the freedom of expression of the users prevail. This absolute prohibition could be more refined in the future, as specific provisions governing algorithms for automated filtering technologies could be considered, to provide for the necessary transparency and accountability of automated content moderation systems.

Furthermore, the European Commission seeks to implement a new tool to combat emerging risks to fair competition. This could involve imposing an obligation on large internet platforms to share data with smaller competitors and/or putting narrow limits on how large internet platforms can use data, in a bid to level the digital playing field.

The European Commission organised a public consultation to support the work in analysing and collecting evidence for scoping the specific issues that may require an EU-level intervention. All European and non-European citizens and organisations were welcome to contribute to this consultation. 

The public consultation has now closed. We are awaiting a first draft of the Digital Services Act package, which is expected to be released on 2 December 2020.

We are closely monitoring the developments in this area and will keep you posted.