Disappointing IMCO vote, but a genuinely safe and trustworthy online environment is still possible

Members of the IMCO committee approved 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.

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 “license 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.
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.
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.
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.