This article was updated with a factual correction on the position of the European Commission and of the Presidency of the EU Council.
A last-minute proposal to change the liability regime for online search engines in the Digital Services Act (DSA) was circulated in the European Parliament, amending a proposal of the EU Commission that already favours rightsholders.
The proposal was circulated ahead of the Easter break in the form of a note by Geoffroy Didier, who represented the legal affairs committee (JURI) in the DSA discussions. The initiative is pushed by the rightsholders alliance and taps into a long debate on how to include search engines in the scope of the legislation.
The next – and possibly last – high-level meeting between the EU legislators is on Friday (22 April).
The note expressed support for the proposal of the European Commission, which defined search engines as an ad hoc category and introduces a notice and action (N&A) mechanism that would be required to take down illegal content once it is flagged to them. At the same time, Didier proposed a few changes to the Commission’s text.
The note asked to remove a part in the text’s preamble providing examples of ‘mere conduit’, ‘caching’ and ‘hosting’ services, categories with different liability regimes established in the eCommerce Directive, the predecessor of the DSA. These examples were overly descriptive for the rightsholders that prefer a case-by-case in court.
Another change would mandate that if illegal content is flagged, not just the relevant web pages but the entire website should be delisted, namely removed by the search results. In the most extreme case, that would mean that if a video is illegally uploaded on YouTube, Google would have to remove the entire platform from its search results.
Finally, a modification to an article would oblige search engines to remove all search results referring to the flagged illegal content, not only the specific website. In other words, the platforms would have to monitor all websites searching for unlawful content.
For search engines, that would entail nothing short of a general monitoring obligation; a principle rejected in the Copyright Directive. By contrast, the rightsholders consider this to be ‘specific’ monitoring, as it is targeted at illegal content that is recognisable via specific electronic patterns.
Moreover, search engines note that, compared to other platforms, they do not have a direct relationship with those managing the websites. Therefore, they might not know if a specific content, like a movie, is provided on a website illegally and on another one legally, as they are unaware of the contractual relationship between websites and the rightsholders.
In other words, the search engine would have no way of knowing if a takedown request is justified without contacting the website owner, which currently it has no way of doing. As a result, search engines might have to establish a contractual relationship with the website owner.
So far, the websites have been liable for hosting illegal content. Still, search engines now fear that by including them in this liability regime, they would become the primary targets for takedown notices, increasing their administrative burden exponentially.
Risk of over-blocking
Another concern relates to over-blocking, as legal content might also be taken down accidentally. Thus, the proposal is likely to meet the opposition of Scandinavian countries that are traditionally sensitive to the freedom of expression argument, an EU diplomat told EURACTIV.
“The entertainment industry knows that the Commission favours a specific notice and takedown obligation for search engines, so it is piggy-backing on to something that the Commission already supports and then making it worse,” former MEP Felix Reda told EURACTIV.
“The overall goal of these amendments is to drastically extend website blocking obligations to a broad range of online services at the expense of freedom of expression.”
According to a source informed on the matter, the European Commission is pushing the N&A mechanism in order to favour rightsholders, and it has been actively promoting it with political groups in the European Parliament. A second source said that the N&A was also accepted by the Council Presidency. France has historically been sensitive to the rightsholders’ requests.
Just ahead of the last political trilogue on the Digital Markets Act, the DSA’s sister proposal, the European Commission made a last-minute proposal promoting the interest of publishers with the support of the French Presidency, trying to reopen yet another dispute closed by the Copyright Directive.
The proposal was revealed by EURACTIV a few hours before the beginning of the trilogue, alerting MEPs that eventually rejected it. By contrast, this time, the last-minute attempt is coming from the European Parliament, trying to win support from the lawmakers ahead of the negotiation.
According to a European Parliament official, at a technical meeting earlier this week all political groups opposed Didier’s proposal. However, the parliamentary source voiced concerns about what the rapporteur Christel Schaldemose might do in the final trilogue, as she previously defended the instance of the cultural sector during the discussions on the media exemption.
According to a third source, the European Commission is working on a new proposal on search engines.
[Edited by Nathalie Weatherald]