In recent years the European Commission has proposed and adopted various legislative changes to help combat online piracy.
This includes the Copyright Directive which passed in 2019 as well as the Digital Services Act (DSA), which was officially unveiled at the end of 2020.
The new legislation was met with fierce criticism. Some believe that it will lead to more ‘dumb’ upload filters. At the same time, copyright holders believed that it didn’t go far enough, as there’s no ‘staydown’ requirement.
After the official adoption by the EU Parliament earlier this year, representatives of the Parliament, the Council and the Commission engaged in trialogue negotiations to flesh out the final details. On Saturday morning, after 16 hours of discussions, the parties reached an agreement.
At the time of writing the final text is yet to be published. It is clear, however, that the main goal is to keep large online platforms and services accountable to stop the spread of harmful, misleading, and illegal content.
“The DSA will upgrade the ground-rules for all online services in the EU. It will ensure that the online environment remains a safe space, safeguarding freedom of expression and opportunities for digital businesses,” European Commission President Ursula von der Leyen says.
The DSA is the official successor to the E-Commerce Directive. The new package aims to bring EU legislation into line with the current state of the digital age, which has changed dramatically over the past several years.
The legislation includes new rules for big tech and also touches on some copyright issues. These set out how online services should handle takedown notices, without being held liable for user uploads.
In addition, it will allow “trusted flaggers” to get preferential treatment in the takedown process.
The DSA proposal also strengthens the rights of users with a strong focus on transparency. For example, if platforms or services work with trusted flaggers, the public has the right to know who these are.
Also, if a hosting provider removes content following a takedown notice, users should be informed on what grounds this action was taken, and how they can appeal. On top of that, platforms have to take measures to prevent abusive takedown notices.
According to the DSA drafters, this added transparency is required to safeguard the fundamental right to freedom of expression.
The new rules and requirements don’t apply equally to all online platforms and services. The DSA makes a distinction between intermediary services, hosting services, online platforms, and very large platforms. The strictest rules apply to the latter category, which includes “big tech” outfits with more than 45 million EU users.
For example, the DSA requires online platforms and big tech to properly verify the identities of third-party suppliers to tackle the sale and distribution of illegal content. This KYBC requirement does not apply to intermediaries and hosting platforms.
The big tech companies also have to allow for external audits and offer broad transparency into how their recommendation algorithms work. If a company doesn’t comply with any of these rules, the EU can issue multi-million euro fines.
It is hard to properly evaluate the final agreement without the final text. However, over the past months, we have seen that both rightsholders and digital rights activists are not completely happy with the DSA, which is an indication that it’s somewhat of a compromise.
The new DSA rules will go into effect for big tech platforms later this year. For the other platforms and services, it can take up to 2024 before the changes go into effect.