State of Play of the Digital Services Act

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The European institutions are getting ready for the revision of the 2000 e-Commerce Directive, with the so-called Digital Services Act Package. The public consultation on the file was expected in March but has been pushed back to late May / beginning of June due to the COVID-19 outbreak. The Commission’s regulatory initiative is foreseen for the end of 2020 but could potentially be delayed to the first quarter of 2021.

Initiative Reports

With the proposal from the Commission expected later this year / at the beginning of next year, three committees of the European Parliament have each published a draft initiative report on the file. Initiative reports are non-binding instruments but are used by the European Parliament to give their perspective on an upcoming policy proposal and make specific suggestions to the European Commission.

On 15 April, the Maltese Member of the European Parliament (MEP) Alex Agius Saliba (IMCO, S&D), rapporteur of the Digital Services Act (DSA) file, published the first Draft Initiative Report (INL) on the DSA. The draft report contains recommendations for the Commission for its DSA proposal focusing on improving the functioning of the Single Market. The draft report considers that the main principles of the e-Commerce Directive, such as country of origin clause, freedom of establishment and prohibition on imposing a general monitoring obligation, should be maintained. After a short discussion on 4 May, Saliba’s draft report will be further discussed by the IMCO Committee on 20 May.

On 27 April, the European Parliament’s Legal Affairs Committee’s (JURI) Rapporteur for the Digital Services Act (DSA) file, Tiemo Wölken (S&D, Germany), published the second Draft Initiative Report (INL) focusing on adapting commercial and civil law rules for commercial entities operating online. The Draft Report calls on the Commission to make the “notice-and-action” principle more effective. To achieve this, Wölken aims to strengthen notice-and-action procedures. He prefers this approach over asking hosting platforms to become more proactive and calls on the Commission to not include any provisions to force hosts to implement any automated ex-ante content moderation tools or filters. On 7 May, the JURI Committee discussed the Draft Report. The political groups were generally positive about Wölken’s Draft Report but suggested a few changes.

Finally, on 30 April, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) published the third Draft Initiative Report on the DSA focusing on fundamental rights issues (2020/2022(INI)). The Rapporteur Kris Peeters (EPP, Belgium) recommends keeping the prohibition of a general monitoring obligation, limited liability regime and the country of origin clause in order to avoid over-compliance and unnecessary regulatory burdens. To address illegal content more effectively, legal obligations for digital service providers should be introduced on meaningful transparency as well as proactive measures to address the appearance of illegal content on their services.

Studies on the DSA and e-commerce

Over the last weeks, the European Parliament and the European Commission have been publishing and/or contracting studies on the Digital Services Act, the e-Commerce Directive and other issues related to digital services.

The IMCO Committee published a study called ‘Enforcement and cooperation between Member States: Ecommerce and the future Digital Services Act’. The study presents an overview of possible options for an effective model of enforcement for a future DSA. The European Parliament has also published a report on the reform of the EU liability regime for online intermediaries, which serves as a background on the forthcoming DSA. The report focuses on the struggles of the EU liability regime to capture liability issues raised by new actors, such as search engines, social networks and online marketplaces. A third study analyses the short-, medium- and long-term perspectives and implications for the DSA.

Finally, The European Commission is to contract a €600.000 study on the gatekeeping power of digital platforms. The study will assist the Commission’s impact assessment and aims thus to gather evidence that could feed into the upcoming Digital Services Act package.

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