EC Urged to Retain Safe Harbor Liability Exemptions for Online Intermediaries
EU rules on liability of online intermediaries shouldn't change under upcoming draft legislation, some stakeholders said. The Digital Services Act (DSA) is intended to update the 2000 EU e-commerce directive, which set minimum liability standards for internet intermediaries and established "safe harbor" exemptions. Although work on the proposal is in an early stage, digital rights activists and some European Parliament members urge retaining the safe harbor provisions. The European Commission told us it intends to unveil a proposal for consultation in coming weeks, and a draft measure "later this year."
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The DSA is part of EC President Ursula von der Leyen's agenda to make Europe "fit for the digital age." It calls for upgrading liability and safety rules for digital platforms, services and products to complete the digital single market.
The European Parliament analyzed the current intermediary liability regime, implementation gaps and main proposals for revising the system. The April 30 paper said the e-commerce directive isn't uniformly applied across the EU, and many areas are unclear, such as to what extent new online services such as social media companies fall within the definition of information society service providers that can benefit from safe harbor. The paper said academics and stakeholders want new clarification of whether digital services providers such as social networks and online marketplaces could benefit from safe harbor; there may be an opportunity to enshrine a "Good Samaritan" clause to motivate online intermediaries to better control the content they host.
EU lawmakers are setting out positions in own-initiative reports. COVID-19 "exposed serious shortcomings in the ways platforms such as Google, Facebook, and Amazon are regulated in Europe," said Internal Market and Consumer Protection Committee (IMCO) rapporteur Alex Agius Saliba, of the Socialists and Democrats and Malta. His draft report for the lead committee called for retaining safe harbor, and expanding the DSA to digital services, not just online platforms.
Illegal content should go through notice and action procedures based on intermediaries' duty of care, responded the Legal Affairs Committee. The current “limited liability” regime, where intermediaries are deemed liable and can be asked to remove content only when they have actual knowledge of the illegal activity, should be retained, wrote Patrick Breyer, of the Group of the Greens/European Free Alliance and Germany. The idea is to have parliamentary reports adopted by September, he said.
Intermediary liability provisions should remain intact, emailed European Digital Rights Senior Policy Adviser Jan Penfrat. "No matter how well-intentioned, threatening hosting intermediaries with legal liability for user-uploaded content will inevitably lead platforms for remove or block any content that could potentially be considered illegal anywhere in the EU to avoid the legal uncertainty and risk," with negative effects on free speech. EDRi expects opposition to the proposal from those who believe that big tech platforms "should do more" to fight hate speech and disinformation but aren't sure how to achieve that, he said. EDRi wants large commercial platforms to be required to be more transparent about how they manage online content. Google and Facebook didn't comment this week.