The interplay of Article 17 CDSM Directive with the Digital Services Act

j.quintais

Following a proposal on 15 December 2020, the EU is set to adopt in 2022 the Digital Services Act (DSA). The DSA carries out a regulatory overhaul of the horizontal rules on intermediary liability in the e-Commerce Directive (2000/31/EC) and introduces new due diligence obligations for intermediary services. At this point, it is still unclear how the DSA’s
rules interact with existing sector-specific lex specialis rules, particularly the regime for online content-sharing service providers (OCSSPs) set forth in Article 17 of the Copyright in the Digital Single Market (CDSM) Directive (2019/790). Our analysis suggests that the DSA will apply to OCSSPs insofar as it contains rules that regulate matters not covered by Article 17 CDSM Directive, as well as specific rules on matters where Article 17 leaves a margin of discretion to Member States. This includes, to varying degrees, DSA rules relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where Article 17 CDSM Directive contains specific (but less precise) regulation on the matter.

For national law makers and policy makers, a key question is: how do you plan to adjust national laws and rules for platforms that are subject not only to Article 17 CDSM Directive but also to the DSA? For platforms, a key question is: how do you plan to adapt your content moderation systems to deal with the different and overlapping rules applying to copyright infringement and to other types of illegal content?

Want to know more?

D.6.2. Final Report on mapping of EU legal framework and intermediaries' practices on copyright content moderation and removal, DOI 10.5281/zenodo.6461568
Quintais, J., & Schwemer, S. (2022). The Interplay between the Digital Services Act and Sector Regulation: How Special Is Copyright? European Journal of Risk Regulation, 13(2), 191-217. doi:10.1017/err.2022.1
Peukert, A., Husovec, M., Kretschmer, M., Mezei, P., Quintais, J.P., European Copyright Society – Comment on Copyright and the Digital Services Act Proposal. IIC 53, 358–376 (2022) (Published: 14 March 2022)
Mezei, P., Platforms under control? An expert opinion on the copyright aspects of the Digital Services Act, Ideas in All, (ALL Institute) (6 April 2022).