The Digital Services Act: Letter to trilogue negotiators on key issues for the creative and cultural sectors
Dear trilogue negotiators,
As the DSA trilogue negotiations unfold, Creativity Works! – a leading coalition of the cultural and creative sectors – would like to remind you of some key issues that need to be addressed to deliver on the DSA’s claimed objectives. As things stand, the DSA risks being a major step backwards and will not contribute to a safer online environment for consumers and businesses.
Our members create, produce, finance, publish, distribute and showcase creative content – be it films, TV series, shows, original content, news programmes, music, pictures, books, video games, sports events, and much more. Together, we help make the Internet the vibrant engaging place we all enjoy while driving technological business developments. The following points, at a minimum, require adjusting during the trilogue:
1. The new safe harbour for search engines will weaken online protection – not strengthen it (Article 4)
Instead of clarifying the status of search engines, the amendments to Article 4, as proposed by the Council, take away the legal incentives for search engines to act responsibly and contribute to the fight against illegal content. This new safe harbour removes the obligation on search engines to act upon notices and remove illegal content. This runs counter to the spirit of the DSA to make the internet safer and the objective of the co-legislators not to touch upon the liability regime foreseen by the 2000 e-commerce directive. If unchanged, this would create a new loophole and dramatically weaken our ability to protect our content online against piracy. The same applies to all other illegal content.
We kindly call on trilogue negotiators to remove this provision and work towards a suitable solution that does not remove or weaken the existing incentives on search engines to contribute to a safer internet.
2. Know Your Business Customer (KYBC) should not be limited to online marketplaces
The extension of KYBC obligations to all online intermediaries is needed if the EU is serious about fighting against scams, falsified medicines, counterfeits and illegal content. Limiting it to online marketplaces means that the DSA would fail the future-proof test and be outdated before becoming law.
We kindly ask trilogue negotiators to take into account the positive signal sent by the European Parliament with the adoption of Recital 39-b (linked to a new Article 13-a; amendments 512 & 514) and the support of many EU countries on the matter, including Italy, Spain, Austria, Denmark, Portugal and The Netherlands.
3. Notice and Action – Ensuring Expeditious Removal of Illegal Content (Article 14.3.a – new)
Both prevention and fast removal of illegal and unlicensed content should be the rule – not the exception. The Commission’s proposal to harmonise notice and action mechanisms in Article 14 fails to introduce a real outcome-oriented obligation to act for hosting services providers. In addition, “actual knowledge” and “acting expeditiously” should remain the key criteria for assessing liability under Article 5 of the DSA. The European Parliament’s proposed Article 14.3.a (new) undermines these conditions by suggesting that content should remain accessible while its legality is being assessed. Such an addition defeats the purpose of introducing efficient and effective notice and action mechanisms.
We urge trilogue negotiators to remove the Parliament’s proposed Article 14.3.a (new).
4. No Tolerance for repeat infringers (Article 20.1)
Adopting mandatory repeat offender policies by online platforms is an important tool to ensure online safety and tackle illegal content. The European Parliament completely undermines this due diligence obligation by stating that “online platforms shall be entitled to suspend (…) the provision of their services to recipients of the service that frequently provide” – as opposed to “shall suspend”.
We call on trilogue negotiators not to deviate from the Commission’s and Council’s text and encourage them to introduce a genuine termination provision – as opposed to merely suspension – particularly in cases of repeated suspensions.
5. No General Monitoring Obligation should be maintained
Creativity Works! supports the Commission’s approach to maintain that general monitoring obligations should not be imposed upon intermediary service providers. The Council’s General Approach also upheld this principle and codified the conditions (Recital 28) under which providers may be required to carry out specific monitoring in line with CJEU caselaw. However, the European Parliament suggests amending Recital 28 and Article 7 in a way that would also prohibit “specific monitoring” by introducing unclear concepts of “de jure” and “de facto” monitoring and prohibiting the use of automated tools for content moderation altogether.
We kindly ask trilogue negotiators to stick to the current prohibition of general monitoring obligations and support the helpful Council’s codification of the CJEU case law.
6. Intermediaries are often “best placed” to end infringement; not end-users (Recital 26, Article 14.6, Article 8.2 – c & b – & Recital 40a)
Intermediaries are often not directly liable for illegal content but are still best placed to address it through no-fault injunctions. This has been recognised for over 20 years and is confirmed in Article 14.3 of the E-Commerce Directive and re-confirmed in Article 5.4 DSA: The DSA should “not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement.” The DSA is now potentially jeopardising these essential no-fault injunctions, that are in practice often the most efficient manner to deal with illegal content, by suggesting that victims of illegal content should seek to end infringements on the basis of new criteria such as “technical and operational ability to act” and “closest relationship to the recipient of the service”. At the same time, Recital 26 even goes as far as suggesting that action should be directed to end-users as a priority before involving intermediaries. This would seriously delay the fight against illegal content as the actors closest to the infringement often act in bad faith and hide in anonymity.
We kindly urge trilogue negotiators not to undermine Article 5.4 DSA by amending Recital 26 and rejecting Parliament’s Article 14.6, Article 8.2(c.b) & Recital 40a, which would make efficient intervention against illegal content more difficult.
7. The Trusted Flaggers status should be available to all entities with expertise and a track record of accurate notices
If you want platforms to effectively address illegal content, the recognition of a trusted flaggers status for right holders based on expertise and track record of accurate notices – not the representation of “collective interests” – is needed.
We urge trilogue negotiators to remove the collective interest criterion in Article 19.2.b as suggested by the Council.
We hope that trilogue negotiators will show ambition and finally deliver a safer online environment for consumers and businesses alike. We wish you successful negotiations and remain at your disposal for any further clarifications you may need.