In December 2020, the European Commission presented their Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services, known simply as the Digital Services Act (DSA).
The European Publishers Council (EPC) welcomes the Commission’s proposal which represents an important step in updating the framework of liability exemptions for providers of intermediary services and in setting out due diligence obligations for the gatekeeper platforms which in particular aim to address harm arising out of the dissemination of illegal content online. It is especially important that the new Regulation will ensure that fundamental rights including the right to a free and diverse press are effectively protected, to create a strong transparency and accountability framework for online intermediaries and to foster innovation and economic growth for all.
While the EPC agrees with much of the DSA Proposal, we believe there is room for improvement through clarifications and some changes in order that the DSA can fully achieve its objectives.
A key point for EPC is to safeguard the freedom of the press and the integrity of editorial content, which we feel could be better reflected in the DSA:
Firstly, the DSA should require that online platforms do not assume liability for, and neither remove nor block access to, any professional journalistic content under the editorial control of a publisher disseminated on their platforms unless put on notice by the publisher that the content needs to be taken down.
Secondly, it is therefore essential that when taking measures to comply with their own obligations under the DSA, online platforms do not impose or implement policies, including under their terms and conditions, that lead to the arbitrary removal or blocking of, legally uploaded content which is under the editorial responsibility of a publisher in order to ensure full protection of publishers’ journalistic content and their copyrights.
Thirdly, when updating and clarifying the law with regard to online platforms, publishers must not be subjected to new obligations beyond the general laws and editorial codes applicable to publishers and journalistic content under their editorial control.
Fourthly, the current draft KYBC obligation appears to apply only to marketplaces, but not to very large social networks, content sharing platforms or infrastructure services. Nor does the obligation differentiate between different sizes and types of marketplaces, or take into account the potential risk and impact, of different types and sizes of marketplaces, or who is hosting them. We consider it is necessary that the risk and harm arising from dissemination of illegal content and goods, and the resources and type of each platform be taken into account, and to reconsider the extent of KYBC obligations imposed on which type of platform, and to amend the text accordingly.
In our Position Paper, we set out our priorities and some recommended changes in particular covering liability for dissemination of illegal content, due diligence obligations, KYBC, advertising, data, codes of conduct and enforcement.
For the full Position Paper and EPC's Proposed Amendments, please see below.
In parallel to the Digital Services Act we have set our views and recommendations on the Digital Markets Act Proposal. For the DMA Position Paper please follow this link.