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EU Commission to introduce sanctions regime for illegal content in Digital Services Act

The European Commission will introduce fines and sanctions for platforms that repeatedly violate new obligations on managing illegal content online as part of the forthcoming Digital Services Act, an EU executive official close to the matter has informed EURACTIV.

The move would bring the EU’s efforts in the field closer to certain measures across the bloc, including Germany’s Network Enforcement Act, which introduces fines of up to €50 million for systemic failures to remove illegal content online.

EURACTIV has been informed that certain platforms, defined under objective criteria, will be placed under new obligations to prove how they have dealt with the spread of illegal content online, and the success of their practices in doing so.

“Obligations of means and results will be applied to certain platforms under which they will have to manage illegal content,” the Commission official said.

“Fines and sanctions would come after repeatedly not respecting those obligations.”

eCommerce liability exemptions remain

However, the official added that the liability exemptions for the hosting of content by online intermediaries, as defined in the 2000 eCommerce directive, would remain in place.

Current rules allow services providers exemption from liability for the hosting of illegal content online, should such companies remove or disable access to this material as fast as possible once they are made aware of it.

Broadly speaking, the Digital Services Act will introduce new rules in areas ranging from content moderation to online advertising and the transparency of algorithms.

It will be presented by the Commission on December 2, alongside the ‘Digital Markets Act,’ which will introduce a list of ex-ante prohibited practices by digital gatekeepers, as well as a market investigation tool that could be used to examine how certain markets are prone to failure.

With the new sanctions regime for illegal content as part of the Digital Services Act, it appears that the effectiveness of the eCommerce directive’s liability regime will be put to the test, should platforms repeatedly fail to manage illegal content effectively. And while platforms won’t be held legally responsible for the hosting of illegal content, they could face heavy fines should they be found to have a systemic failure in dealing with such material.

In an interview with Spanish newspaper El Pais yesterday (3 November), Internal Market Commissioner Thierry Breton spoke about the possibility of introducing fines for the hosting of illegal content online and noted that the supervisory body in the relevant member state would be responsible for dishing out the fine.

However, it is understood that the idea of centralising the sanctions-issuing body has not been discounted by the EU executive, with some favouring the idea of having the Commission impose any necessary fines.

NetzDG law and France developments

The Commission’s efforts in this regard bring it closer to the position adopted by Germany’s Network Enforcement Act, otherwise known as the ‘NetzDG law,’ which obliges social networks to remove criminal content and illegal hate speech within a timeframe of 24 hours or face fines of up to €50 million.

The law was expanded earlier this year with the inclusion of new reporting obligations for platforms with regards to certain types of criminal content online.

However, elsewhere in Europe, efforts to rein in illegal hate speech online have faltered, with France’s Constitutional Council ruling earlier this year that the country’s ‘Avia Law,’ which had obliged platforms to remove certain hateful content, resulted in a restriction on freedom of expression. The law was therefore deemed unconstitutional by the French authorities.

However, as part of France’s recently announced ‘separatism bill’ which aims to tackle Islamic extremism, there could well be measures included to stem the spread of online hate speech, according to MP Laetitia Avia, the architect of the original legislation.

Avia has recently been in touch with the EU’s internal market commissioner Thierry Breton about the capacity of the Digital Services Act to address the problem of illegal content online.

Harmful content likely to remain unregulated

In terms of online content that is deemed ‘harmful’ but not illegal, the Commission is likely to refrain from introducing stringent new rules.

Věra Jourová, the European Commission Vice-President for Values and Transparency, held a video call with Twitter CEO Jack Dorsey in late September, in which she gave an insight into the EU executive’s intention to introduce future obligations under the Digital Services Act.

Jourová revealed that during the meeting, she highlighted the Commission’s intention not to necessarily introduce future rules that would force platforms to remove harmful online content or disinformation, focusing instead on how this content spreads online.

She particularly noted the Commission’s dedication to preserving free speech online.

“In order to address disinformation and harmful content we should focus on how this content is distributed and shown to people rather than push for removal,” she said.

The European Commission has given its clearest indication yet that obligations on digital platforms to remove content are unlikely to feature in far-reaching EU efforts to regulate the web, to be presented before the end of the year.

(Edited by Frédéric Simon)