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Update 2.0 to the Digital Services Act - Farewell to the "Notice-and-takedown" procedure?

The European Commission is working on a Digital Services Act, which is intended to reform the liability and security rules for platforms on the Internet. The public consultation phase is currently in progress, during which digital companies, trade associations and the general public can participate in the legislative process. In addition to tighter regulation of major platform operators, the Commission also intends to implement stricter rules for dealing with illegal content on the Internet.

Will digital companies soon have to prepare for "notice-and-action"?

A first draft of the "Digital Services Act" could already be presented at the end of this year, as Golem reports. It is likely that the new law will not only aim at strengthening the competitiveness of (smaller) European Internet services, but will also provide clear guidance on how platforms and service providers should deal with illegal content on the Internet in the future. This would be an innovation compared to the E-Commerce Directive, which is due to be replaced after more than 20 years.

In the view of the European Commission, there should still be no general monitoring obligation, i.e. platforms would not have to proactively check their services for illegal postings as long as they do not receive a corresponding user notification.

However, the draft law could move away from the current "notice-and-take-down" procedure. Accordingly, service providers must only become active and work towards the clarification or deletion of the unlawful content once they become aware of it.

The "Notice-and-action" procedure now under discussion could go much further: This process will mean that platform operators will be obliged to keep their services free of already known illegal content, i.e. content which they have already deleted once. In particular, this would mean that they would have to be proactive in this respect.

It is not yet known how this regulation will be implemented. It is conceivable, however, that platform operators will use an upload filter system to prevent the repeated uploading of already deleted posts. "Notice-and-action" would therefore not amount to a general, but nevertheless a limited monitoring obligation.

To which posts could "Notice-and-action?" apply?

The "notice and action" procedure could be applied in particular to posts with a terrorist content or those with a paedocriminal content. This would not include opinions of a different nature - in this respect such a comprehensive monitoring obligation would go too far.

Thus, it remains to be seen what special checking and deletion obligations will apply to platform operators and service providers in the future. In any case, the new law could mean considerable additional business expenses. We will therefore keep you continuously informed about further developments.


digital services act, e-commerce, platform operators, platform, european commission