16 December 2020CopyrightRory O'Neill

EU to avoid monitoring obligations in DSA

Proposed EU legislative reforms would require greater transparency around the removal of illegal content online, but fall short of monitoring or filtering obligations.

The European Commission yesterday, December 15, published a draft of the long-awaited Digital Services Act (DSA). The DSA is designed to overhaul the regulation of online platforms in the EU and update EU laws for the digital age.

The wide-ranging reforms could include significant measures on copyright infringement and the removal of illegal content. Primarily, the draft introduces transparency obligations for online platforms and intermediaries, such as internet service providers.

These will apply to notice-and-takedown procedures for copyright infringement. For example, platforms will be required to identify “trusted flaggers”, who enjoy priority on their takedown requests. They will also need to be forthcoming with the grounds for removing content.

Among the policies under debate during the formation of the DSA were monitoring and filtering obligations for platforms, but these have not appeared in the draft. Fears over monitoring and filtering had been some of the most controversial issues during debates over the EU Copyright Directive enacted last year.

“The new regulation prohibits general monitoring obligations, as they could disproportionately limit users’ freedom of expression and freedom to receive information, and could burden service providers excessively and thus unduly interfere with their freedom to conduct a business,” the draft states.

Reacting to the proposals, digital rights campaign the Electronic Frontier Foundation (EFF) said the Commission “got several things right” but needed to take further steps over privacy and data protection.

“What we found is a mixed bag with some promising proposals. The Commission got it right setting limits on content removal and allowing users to challenge censorship decisions. We are also glad to see that general monitoring of users is not a policy option and that liability for speech rests with the speaker, and not with platforms that host what users post or share online,” an EFF statement said.

Large tech platforms have indicated their opposition to the DSA. In an October blog post, Google vice president Karan Bhatia claimed too many restrictions on tech platforms could harm economic recovery from COVID-19.

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