With the Digital Services Act (DSA), the EU has created a successor to the E-Commerce Directive (EC-RL). The regulatory package is intended to complete the digital single market and define the future of the Internet in Europe. For 20 years, the EC-RL formed the legal foundation for online services. Considering the rapid development in the digital sector, this is already an impressively long time. The DSA offers the opportunity to adapt the horizontal legal framework to the technological leaps in development over the past 20 years.
Back then, it was hard to imagine what services would develop and in what form they would be used by citizens. Today, we can be reached online almost 24 hours a day via various devices, send and receive messages, use social media and video streaming, or have books, food, and other goods delivered to our homes.
There is no question that the EC-RL was not fully suitable for this purpose. Nevertheless, its rules provided the basic pillars that are still essential today: Limitation of liability based on notice and takedown, country of origin principle and the prohibition of general surveillance.
Service provider extended by platforms
As an association of the Internet industry, we are pleased that the DSA retains these basic pillars or builds on them. We also expressly welcome the fact that the DSA expands the service providers, i.e., caching, hosting, and access providers, to include platforms and we actively called for this as part of eco’s discussions on the successor regulation to the EC Directive. In this way, it creates the opportunity to provide legal certainty in their activities for those who can do more, knows more, and also want to do more, without at the same time compromising the business basis for those who neither know the content nor have the financial or human resources.
Among the corresponding obstacles are rigid deadlines and proactive measures, which are particularly impossible for SMEs to afford. Every serious company already does everything it can to remove illegal content as quickly as possible.
It is regrettable that the political debate surrounding the DSA at the European level has focused very strongly on the large US platforms. It must be clear to the smaller and medium-sized providers that they will hardly be able to meet the requirements geared to platforms. This fact, which after all affects a large part of the market, is usually lost in the political debate.
DSA instead of NetzDG
One of the most important points is certainly to recognize that the Internet is a global medium and that corresponding regulations should also be coordinated at the highest possible political level. For Germany and Europe, this means that only the EU should set the rules.
The German NetzDG, just like other national regulations, are a thorn in the side not only of eco, but of the entire Internet industry, because they do not fit in with the strong desire for successful company startups in Europe. A company that has to adapt to 27 rules within Europe will think several times before deciding whether it would prefer to remain active only in individual countries or to try its luck entirely outside Europe in a large market such as the USA. Accordingly, it is important that the DSA also “supersedes” the NetzDG and does not allow nation states to apply stricter standards themselves in the form of minimum regulation.
This also goes hand in hand with the procedure for reporting and removing illegal content, i.e., notice and takedown, which is to be made much more uniform throughout Europe in the future. Allowing national deviations and special regulations here would call the DSA compromise into question.
Even though the DSA is certainly a milestone in European digital policy, it will not last for decades, as was the case with the EC Directive. Rather, it will require continuous adaptation and further development. This is regrettable insofar as the discussions between the Commission, Parliament and Council have made it clear how different the ideas are and how quickly some have lost sight of the actual goal of the DSA. In the end, a compact horizontal approach has turned into a regulation that is in part very fragmented.
Horizontal legal framework necessary
From eco’s point of view, it is essential in this context that the European Union now seizes the opportunity to ensure legal certainty. However, to this end it is also necessary to enact a horizontal legal framework. The DSA must not become a youth or consumer protection law.
During the trilogue negotiations, the negotiators have not yet been able to reach a consensus on important points such as the general ban on surveillance or the abuse of reporting potentially illegal content. Accordingly, it remains exciting, because the negotiations on the DSA have not yet been concluded.
From a German perspective, the distribution of portfolios under the “traffic light” coalition has transferred responsibility for the DSA within the German government to the Federal Ministry of Digital Affairs and Transport. It would make sense for the Digital Services Coordinator (DSC) to be located here as well. On the one hand, this would ensure that the necessary structures can be set up quickly, that technical expertise can be drawn upon, and that personnel and administrative resources can be used.
When the DSA is implemented and the DSC is then set up, it will in any case be a matter of uniform and consistent handling, both in Germany and in Europe.