In the EU, the basic legal framework for information society services is provided by the e-Commerce Directive. The objectives of the Directive are to remove cross-border obstacles for information society services and provide an internal market conducive to innovation. The e-Commerce Directive lays down requirements for the establishment of information society services in EU territory and intermediary service provider liability. It also specifies that Member States cannot impose a general obligation on intermediary service providers to monitor content uploaded on their platform. The rationale of the Directive is that liability should not be assumed if the internet service provider does not have actual knowledge of illegal activity or content. Once internet service providers obtain knowledge about illegal activity or content, they are obliged to remove or block access, otherwise they would become liable.
As part of the European Digital Strategy, the European Commission has announced a Digital Services Act to strengthen the Single Market for digital services and foster innovation and competitiveness of the European digital economy. The new Digital Services Act will focus on modernizing the current legal framework for digital services by means of two main pillars:
- The European Commission will propose rules that would enhance the responsibility of online platforms towards the provision of their services and address the risks faced by users. The legal obligations would ensure a modern system of cooperation for the supervision of platforms and guarantee effective enforcement.
- The Digital Services Act will propose ex ante rules covering large online platforms acting as gatekeepers. The initiative should ensure that those platforms behave fairly and can be challenged by new entrants and existing competitors, so that consumers have the widest choice and the Single Market remains competitive and open to innovations.
The Commission has initiated a public consultation to support the work in analysing and collecting evidence. All European and non-European citizens and organisations are welcome to contribute to this consultation. The consultation will be open until 8 September 2020.
Regarding internal market aspects, eBay supports a harmonized horizontal EU framework for the regulation of illegal content online, in line with the principles of the digital single market, which should aim to establish uniform rules for the provision of digital services. Such a framework should reinforce and clarify certain aspects of the e-Commerce Directive, whilst maintaining the intermediary liability regime and the prohibition of general monitoring.
It is in the interest of online platforms to ensure illegal content is not found on their website in order to achieve a safe and secure environment, trusted by users. Nevertheless, we believe that a harmonized regime should introduce minimum requirements that allow for flexibility, considering the broad range of platforms, content and procedures for content moderation that exist. It is therefore necessary for the good functioning of content moderation processes to allow platforms to moderate content in a platform-specific manner. This calls for minimum requirements, rather than overly prescriptive “one-size-fits-all” obligations.
Regarding ex-ante rules, eBay agrees with the European Commission that new rules complementing competition law should be adopted to address the role of gatekeeper platforms in the digital economy. The objective of such regulation should be to intervene more rapidly than can be achieved through current (ex post) enforcement.