IFPI, together with organisations from right across the creative sector, have written to the EU expressing concern about the direction that discussions on the Digital Services Act (DSA) are taking in both the European Parliament and in the Council.

The signatories say that rather than meeting the DSA’s original objective of establishing an accountability framework for online platforms and creating a safer and more trustworthy online environment, some of the changes currently proposed would have the very opposite effect. The signatories say that if the proposals as they stand now are approved, the DSA would be “a missed opportunity and a step backwards”. In the signatories’ view, it would “weaken the current liability regime and have a detrimental impact on the existing standards and good practices for addressing illegal content and activities, including online infringements of copyright and related rights”.

Among other points of concern, there are three specific issues that the signatories draw attention to. In their view:

1. the goal of increasing the accountability of search engines should be achieved through the introduction of effective due diligence obligations and not by making them beneficiaries of a broad and unjustified immunity (“safe harbour”); this would fall below some existing national measures and obligations on search engines to effectively remove illegal content; this would also go against the EU’s general political commitment not to modify or broaden the liability limitations under the E-Commerce Directive; the signatories also express concern about the proposals to establish that intermediary services can continue to benefit from the “safe harbour” privileges even when they do not comply with their due diligence obligations; the contrary is true; diligent behaviour is and should continue to be a factor to assess the eligibility for “safe harbours”; offering the “safe harbour” privileges to non-diligent operators would remove all real and impactful incentives for compliance with their obligations under the DSA;
2. the introduction of specific time limits (even as upper limits) for the take down of illegal content would substantially weaken the current obligation to take “expeditious” action, creating an unintentional disincentive for hosting services to act as diligent operators; the DSA should ensure that “expeditious removal” means “as fast as possible” for all content and even “immediately” during live broadcast and for content that has particular time-sensitivity; any indication of specific time limits would be short-sighted and make the DSA obsolete very quickly in light of the continuous and rapid technological developments; and
3. the lack of ambition in setting truly effective due diligence obligations fails to reflect the broad scope of illegal activity that takes place online; extending the scope of application of the obligations to ensure the traceability of business users (“Know Your Business Customer”) is absolutely necessary to tackle the serious problem of illegal operators acting on a commercial scale and hiding behind false identities; there should also be more effective tools introduced when it comes to addressing rogue players, repeat infringers and systematic illegal activities; a meaningful mechanism for the enforcement of these obligations should be established to ensure that EU consumers have as little exposure as possible to illegal content, services and products.

The signatories say that the DSA is “a great opportunity for the EU to create a secure, well-functioning online environment” that enables the creative sector to grow in the EU Digital Single Market. It is “crucial to make the most of this opportunity to future-proof the DSA and ensure high standards of diligence and accountability for online operators”, they say.

The signatories urge the EU to take their concerns into consideration and to ensure that the DSA achieves its original objectives and does not hinder the growth of their sector. To read the letter in full, click here.