Authorities of all kinds should in future be able to send host providers cross-border orders to take action against illegal content such as punishable hate comments, depictions of sexual abuse of children or the unauthorized use of copyrighted works. Affected platforms must then block or block such offers “without unreasonable delay” and also report serious crimes to the police.
The EU Parliament voted in favor of such a requirement by a large majority of 530 votes to 78 with 80 abstentions on Thursday in the plenary vote on the Digital Services Act (DSA). It largely followed the recommendation of the lead Committee on the Internal Market and Consumer Protection (IMCO). With the resolution, the people’s representatives have adopted their line on the so-called Platform Basic Law. On this basis, negotiations with the EU states on a final compromise are now taking place. The Council of Ministers had already defined its position in November.
Instructions and Remedies
Cross-border, according to the DSA, the effect of an instruction against illegal content should generally be limited to the sovereign territory of the EU country issuing the order. MEPs also want to ensure that “effective legal remedies” are available to users and affected companies. These are intended to include the restoration of content that was mistakenly deemed illegal and removed.
Parliament also wants to ensure that reports are not dealt with in an arbitrary and discriminatory manner. Fundamental rights – such as freedom of expression – must be observed when issuing and following relevant orders.
Small Business Exceptions
The provisions also cover harmful content such as disinformation. This is primarily the aim of conditions for recommendation systems that platforms use in their news feeds, for example. With the DSA, they would have to make the functioning of the algorithms used transparent. Furthermore, platforms for automated decisions should be held more accountable.
The digital services covered include intermediary services such as Internet providers and domain registrars. Social networks, e-commerce providers as well as cloud and web hosts are also recorded. Their duties vary by role, size and impact. MEPs are calling for exceptions for small companies.
Microtargeting and Cookies
In addition to measures to remove content (“Notice and Action”), core elements of the DSA draft are updated liability regulations and rules for personalized advertising. A cross-party coalition, civil rights activists and parts of the middle class pushed for a far-reaching ban on “spying advertising” with microtargeting. Parliament did not go that far, but it wants to prohibit the use of particularly sensitive data on origin, health and sexual or political orientation. Targeted advertising aimed at minors should also be generally prohibited.
Platforms must also ensure that users can consent to targeted advertising in a simple and informed manner in line with the General Data Protection Regulation (GDPR). Saying no must be “no more difficult or time-consuming” than opting in. The people’s representatives want to anchor “Do not Track” settings in the browser in law, for example, in order to reduce the popping up of consent banners. If a user does not agree, he should be given “other fair and reasonable options” for access to a platform.
Dark Patterns
Also included is a clause against design tricks such as “dark patterns”. Accordingly, platform operators may not use the structure or functionality of their online interface or part of it to prevent users from making a free decision or choosing. In principle, providers may continue to interact directly with users in order to offer them services. A repeated request for consent to data processing is prohibited, however, if a no was given once. A provider is also not allowed to highlight an option he prefers in color.
Very large online platforms with over 45 million users have to carry out risk assessments and minimize identified dangers, for example to democracy, public discourse or the protection of minors. They should share their data with authorities, researchers and civil society organizations so that their working methods can be checked and a picture of the situation can be drawn up. The people’s representatives want to enable users and consumer protection organizations to demand compensation if operators have not complied with their duty of care.
Out with deepfakes and revenge porn
If a very large platform discovers deep fakes, i.e. manipulated image, audio or video content to imitate a person in a deceptively real way, it must label them accordingly. Such networks are also said to offer an alternative recommendation system that is not based on profiling.
Parliament is also pushing for a new article on image-based sexual abuse on porn platforms. Users should only be allowed to upload images, videos or texts to erotic portals such as Pornhub and xHamster if they have given the operator an email address and mobile phone number. A simple reporting mechanism for “revenge porn” is also planned. Online marketplaces should identify the distribution of illegal products or services by traders who use their service as best as possible and use a database to prevent it.
End-to-End Encryption
There is a right to end-to-end encryption. “Member States must not prevent providers of switching services from offering end-to-end encrypted services,” demanded the people’s representatives. This is essential for trust in the network and cyber security. Furthermore, the EU countries should not impose a “general obligation to restrict the anonymous use of their services” on services such as Facebook, WhatsApp, Signal & Co.
Several committees and groups had tabled hundreds of amendments, but only some of them found a majority. The interior committee campaigned in vain for courts to decide on deletion orders. However, the MPs voted for a motion according to which the terms and conditions of platforms must conform to fundamental rights and must comply with freedom of speech and freedom of the media. Operators should also make “reasonable efforts” to enable anonymous use and payment of online services.
Internal Market Commissioner Thierry Breton was pleased that the EU was taking a “historic step” with the decision to end the “Wild West” that “dominates our information space”. It will ensure that the new rules are applied uniformly across the EU. They apply to “all actors”, not just European ones. On twitter the Frenchman dubbed the DSA even as the “new sheriff in town” accompanied by commented scenes from the western “Two Glorious Scoundrels”. Above all, German politicians hope to be able to use the DSA to take stronger action against hate and hate speech as well as counterfeit vaccination certificates on the Telegram chat service.
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