How the EU law on online services wants to restore trust in the digital sphere

Mark Boris Andrijanič is the Slovenian minister for digital transformation.

This article is part of our special report DSA: Re-establishing trust in the internet society.

The general approach to the Digital Services Act (DSA) has been one of the major achievements of the Slovenian Presidency, and on 25 November, EU ministers unanimously adopted the mandate to initiate the interinstitutional negotiations on it. The agreement was reached just 11 months after the presentation of the proposal under the leadership of the Slovenian Presidency.

Mark Boris Andrijanič, Slovenia’s minister for digital transformation in charge of the file, told EURACTIV in an exclusive interview how the DSA is meant to foster trust in the digital environment.

What is the Digital Services Act trying to achieve?

The number one objective of the DSA is to create a safer digital space. It does so by protecting consumers rights and setting out clear as well as balanced responsibility for platforms, especially the large ones. It brings more clarity and legal certainty into the system, which will, in the end, strengthen trust in digital services, and the digital space in general, for our citizens.

That’s why we need to proceed with this legislation in a timely manner, and we are very satisfied that we reached an agreement swiftly. It’s a historic win for European consumers.

There are several signs that trust in the digital environment is declining. How is the DSA intended to restore that trust?

The problem with today’s digital space and the citizens’ experience with it is that there seems to be a lack of clarity when it comes to the rights and obligations of all the players in the digital sphere, which obviously leads to certain practices that are unfair or unwanted.

Our citizens don’t feel safe in cyberspace. With the DSA, we are very firmly implementing the principle that what is illegal offline should also be illegal online. As a result, there will be more transparency and certainty when it comes to what is allowed on the internet and what isn’t.

This lack of clarity is not only hurting consumers. It’s also something that no business wants. It’s also in the interest of the internet businesses that we restore citizens’ trust because this will foster the consumption of online services. In the end, it’s a win-win situation over the long run and a very necessary move in the short run.

One of the most delicate points the DSA is trying to address is illegal content, which needs to be balanced with freedom of speech. How does the DSA strike that balance?

The DSA is horizontal legislation of procedural nature that doesn’t really define what is legal and illegal. The definition of illegal content remains the responsibility of national legislations, except when it comes to harmonised rules across the EU, as is the case for terrorist content and child sexual abuse.

What the DSA does regulate is the management of illegal content. Meaning how providers of online services deal with this kind of content, setting very clear rules and procedures on what needs to be done in various cases, for instance, notifying the competent authorities.

When it comes to the content that is harmful but legal, that is an area where platforms have more freedom. However, their policies should be defined in their terms and conditions, and these must comply with human rights.

What’s important to highlight is that intermediaries have no general monitoring obligation, a principle that was already set out in the e-Commerce Directive in 2000. But, of course, when a platform is informed about the legality of certain content that’s been uploaded, then it must react accordingly.

To which services do these obligations apply?

There is a fundamental difference between intermediaries that are mere conduits, such as internet service providers, and very large online platforms. This distinction is at times a bit blurry, but most of the time, you can distinguish intermediaries that are different in nature and their societal impact.

Internet providers are only transmitting communications and are therefore not subject to obligations to take down illegal content. They are not liable as long as they didn’t initiate the communication, haven’t defined or selected the receiver, or haven’t modified the information.

However, they need to comply with certain conditions such as having a legal representative in the EU, providing compliant terms and conditions, and transparency reporting.

In terms of societal impact, how are the different digital actors meant to address potential risks?

The very large online platform will need to conduct risk assessments. Platforms with a systemic role in the digital space also pose systemic risks to the participants online, which means there needs to be a higher degree of oversight and transparency.

It’s really important to notice that these obligations for online service providers are designed in an asymmetric manner, which means that smaller players have far fewer obligations than the big, systemic players.

One of the objectives of the DSA is also to encourage entrepreneurship and innovation, and we do not want to create unnecessary costs or unintended consequences for the small yet growing companies.

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