The EU executive has put forth a non-paper on how to best include search engines in the obligations of the Digital Services Act (DSA), addressing concerns that Google and the likes might slip the regulation’s scope.
The Commission’s non-paper on online search engines was shared with EU diplomats on Tuesday (29 March), presenting a compromise text with a liability regime and due diligence obligations specific to search engines.
The DSA builds on the e-Commerce Directive, which recognises three types of services: mere conduit, namely the transmission of a communication; caching, which involves the automatic storage of transmitted information; and hosting, for storing information.
“The Commission services consider that it would be appropriate to recognise that online search engines have specific characteristics, not perfectly corresponding either to caching or to hosting services. This could be reflected in a separate article with specific rules,” reads the non-paper, seen by EURACTIV.
The document took stock of the different positions of the EU institutions, noting, in particular, that the Parliament’s text is close to the original proposal to assess search engines’ services on a case-by-case basis but that some of the added wording might create legal uncertainty.
The Council’s mandate included search engines as an additional category, giving them the same liability provisions as caching services. As a result, search engines would not have an incentive for removing illegal content even when they are aware of it.
The non-paper includes a new definition for search engines as a “service that allows recipients of the service to input queries to perform searches of, in principle, all websites, or all websites in a particular language, based on a query on any subject in the form of a keyword, voice request, phrase or other input, and returns results in any format in which information related to the requested content can be found.”
A new article on online search engines (Art. 4a) would exempt them from being liable for illegal content or activity unless they do not know it and take immediate action to remove it as soon as they become aware.
A new article on very large search engines (Art. 33a) puts them under the same rules as very large online platforms, namely those with more than 45 million users in the EU, notably risk assessment and mitigation.
For the Commission, the proposed text is “in line with the similar legal treatment as in the United States (DMCA), and in some national laws and case-law. This would recognise existing practices and reduce legal uncertainty and fragmentation in the EU.”
France, in particular, voiced concerns through the negotiations in the EU Council that the proposal had to be modified to ensure that search engines would do not slip through the net of the new EU rulebook for the internet economy and pushed for treating them as a fourth category.
An EU diplomat told EURACTIV that France’s concern is to ensure that Google is in the scope, noting that the Commission’s text is so close to the French position that it would not be surprising if the proposal had been drafted in Paris.
A second diplomat stressed that not everyone is convinced this addition to the text is necessary and might create more legal confusion than clarity.
Search engines have not been included in the request of the French Presidency for an updated mandate to negotiate with the EU Parliament. However, a third diplomatic source told EURACTIV that it might be a red line for a country like Spain.
[Edited by Nathalie Weatherald]