Creative and Cultural sectors join forces to express serious concerns over the Digital Services Act

FIAD has joined forces with across Europe's cultural and creative sector in sending a clear message to the Member States of the European Union over the current direction of the Digital Services Act.

See the letter here and also below:

We represent a broad coalition of organisations in the creative and cultural sectors in Europe, including music, audio-visual, literary and visual authors; performers; book, music, scientific, technical, and medical publishers; recorded music, film and TV producers; sports rights owners; distributors and photo agencies.

We are very concerned that the General Approach on the Digital Services Act (DSA) adopted today by the Council fails to deliver on the DSA’s original objective of establishing more accountability for online platforms and creating a safer and more trustworthy online environment.

Paradoxically, some of the modifications proposed would have the exact opposite effect. They would weaken the current liability regime and have a detrimental impact on the existing standards and good practices for addressing illegal content and activities in some areas, including online infringements of copyright and related rights.

Among the points of concern to our sectors, there are three specific issues that we would like to draw attention to in particular:

1. The introduction of a “safe harbour” for search engines alongside “caching” services in Article 4 of the DSA would go against the EU’s general political commitment not to modify or broaden the liability limitations under the e-Commerce Directive. The goal of increasing the accountability of search engines should be achieved through the introduction of effective due diligence obligations, not by making them beneficiaries of a broad and unjustified “safe harbour”. This new “safe harbour” would fall below several existing national measures and obligations and would remove all incentives for search engines to stop enabling access to illegal or harmful content – and make money on the back of such activity.

2. Proposals establishing that intermediary services can continue to benefit from the “safe harbour” privileges even when they do not comply with their due diligence obligations would equally remove all real and impactful incentives for compliance with their obligations under the DSA. Diligent behaviour is and should continue to be a factor to assess the eligibility for “safe harbours”.

3. The lack of ambition in setting truly effective due diligence obligations fails to reflect the broad scope of illegal activity that takes place online. Extending the scope of application of the obligations to ensure the traceability of business users (“Know Your Business Customer”) is necessary to tackle the serious problem of illegal operators acting on a commercial scale and hiding behind false identities. There should also be more effective tools introduced when it comes to addressing rogue players, repeat infringers and systematic illegal activities. A meaningful mechanism for the enforcement of these obligations should be established to ensure that EU consumers have as little exposure as possible to illegal content, services, and products.

The EU has a unique opportunity to create a secure, well-functioning online environment to improve consumer trust and enable our creative sector to grow in the EU Digital Single Market. It is therefore crucial for Member States, together with other co-legislators, to reassess the above-mentioned proposals.