Towards a Safer and More Free Internet: Expert Opinion on the Draft Digital Services Act
Potsdam: Friedrich Naumann Foundation (2022), 29 pp.
ISBN 978-3-948950-31-6
"With the Digital Services Act (DSA) and the Digital Markets Act (DMA) package, the European Union will adopt what is probably the most significant international standard-setting project besides the General Data Protection Regulation (GDPR). It is expected that the DSA will have far-reaching impact beyond the EU. This legal opinion deals with concrete questions on the effectiveness of the DSA, as well as in the areas of conflict with freedom of communication and dissemination of disinformation. The opinion concerns the draft published by the European Commission in December 2020." (Executive summary, page 5)
Question 1: To what extent will the proposed regulations succeed in setting a uniform European regulatory framework and thus use the economic power of the European internal market to set global standards? To what extent do national regulatory powers remain, for example for the German Network Enforcement Act (NetzDG)? 8
Question 2a: Could the planned liability regulations encourage over-blocking and thereby unduly restrict the freedom of information and expression? To what extent is the experience with comparable regulations such as the German Network Enforcement Act already taken into account in the DSA Draft, where are adjustments indicated? 17
Question 2b: Can the planned liability regime contribute to any (further) privatisation of the interpretation and sanctioning of content beyond the limits of freedom of expression? What would and should be the legal significance of Community Standards/providers' terms of use? 21
Question 2c: Will the planned liability regulations constitute a "monitoring requirement" for platforms, making upload filters necessary for platform operators, for example? 24
Question 2d: Could the planned requirements have an anti-growth effect with regard to smaller providers, innovative business models and new market participants? 25
Question 3: Does the draft succeed in addressing the issue of the dissemination of mis- and disinformation via online platforms and pointing out appropriate solutions? 26
Question 2a: Could the planned liability regulations encourage over-blocking and thereby unduly restrict the freedom of information and expression? To what extent is the experience with comparable regulations such as the German Network Enforcement Act already taken into account in the DSA Draft, where are adjustments indicated? 17
Question 2b: Can the planned liability regime contribute to any (further) privatisation of the interpretation and sanctioning of content beyond the limits of freedom of expression? What would and should be the legal significance of Community Standards/providers' terms of use? 21
Question 2c: Will the planned liability regulations constitute a "monitoring requirement" for platforms, making upload filters necessary for platform operators, for example? 24
Question 2d: Could the planned requirements have an anti-growth effect with regard to smaller providers, innovative business models and new market participants? 25
Question 3: Does the draft succeed in addressing the issue of the dissemination of mis- and disinformation via online platforms and pointing out appropriate solutions? 26
