According to an alleged European Union Commission document, the EU is considering the creation of a new law to address issues such as disinformation and online hate speech.
The proposed law, referred to within the note as the Digital Services Act or Digital Service Code, was first revealed to the public through a leaked EU Commission note. The note opens with three “illustrative examples” of issues the EU intends to address with the proposed legislature:
(1) Social networks face multiple divergent rules for removing illegal hate speech on their services in different Member States (eg. Germany, France), and different rules for text or video material. As a result, the fight against online hate ls expensive and inefficient across the Single Market, without binding safeguards for freedom of expression.
(2) There are no common legally binding rules on online advertising services in the EU, including for political advertising across borders. As a result, cross-border micro-targeted disinformation campaigns are easy to set-up, but difficult to detect.
(3) Digital collaborative economy services increasingly face uncoordinated national or even regional regulation of their services and no standards exists for information exchange with local or national authorities (e.g. on tax matters). As a result of this legal fragmentation lack of enforcement (e.e. of the E-Commerce Directive), and the lack of information for regulators, home-grown collaborative economy start-ups such as Taxify cannot scale-up across the EU and grow to compete with US rivals such as Uber.
The commission then presents three “initial ideas for possible objectives,” noting that the scope of these regulations would extend across “all digital services, and in particular online platforms”:
• To provide providers of digital services with a clear, uniform, and up-to-date innovation friendly regulatory framework in the Single Market
• To protect, enable, and empower users when accessing digital services
• To ensure the necessary cooperation among Member States, together with the adequate and appropriate oversight of providers of digital services in the EU.
The note focuses on two aspects of the digital landscape: e-commerce and “consumer protection,” though the actions proposed by the commission seem counter-intuitive to these goals. To protect online commerce, the commission entertains ideas such as instating “rules around political advertising” and “adequate possibilities for auditing and accountability,” but also the possibility of removing certain protections afforded to host services, as “the notions of mere conduit, caching and hosting service could be expanded to include explicitly some other services.” Removing these protections could allow for web hosts to be held accountable for the content posted by their users, regardless of whether they were an active participant or not.
In consideration of protecting general internet users, the commission discusses increasing efforts to moderate “illegal” and “harmful” content:
“Uniform rules for the removal of illegal content such as illegal hate speedi [sp] would be made binding across the EU, building on the Recommendation on illegal content and relevant case-law, and include a robust set of fundamental rights safeguards. Such notice-and action rules could be tailored to the types of services, e.g. whether the service is a social network, a mere conduit, or a collaborative economy service, and where necessary to the types of content in question, while maintaining the maximum simplicity of rules. The feasibility of introducing thresholds could be examined in this context, taking due account of the size and nature of the service provider and of the nature of the potential Obligations to be imposed on them.”
The commission then notes that “[t]he analysis will also cover harmful content (which is not necessarily illegal), as such content is not only addressed in EU-level policies (such as the AVIVSD), but also at MS level (e.g. the draft French fake news law, the UK Online Harms White Paper, etc.” As the two cited member-state documents contain broad definitions of the content it seeks to combat (The French law allows the government to remove any news “by a foreign state or under the influence of that state” which “deliberately disseminates false information likely to affect the sincerity of the ballot” and the UK paper labels “Harassment and cyberstalking,” “cyberbullying and trolling,” and “hate crimes” as harms, but neither provides any litmus test for qualifying this content), many fear that the proposed EU act could lead to stronger censorship of the open internet by allowing for the targeting of political and ideological opponents.
Currently, this act has not been formally proposed to the EU. When asked for comment by German news blog Netzpolitik, the commission declined and stated that “The Commission never comments on leaked documents”.