ERGA‘s position on the Digital Services Act (DSA): extending and strengthening the powers of the national regulatory authorities (NRA)
In its paper ERGA, the European Regulators Group for Audiovisual Media Services, identifies what it believes to be the key policy challenges relating to online content regulation and the key principles that may underpin the Digital Services Act (DSA) Package. The group also discusses the opportunities for improving European cross-border cooperation under the new regulatory framework and the additional powers that national regulatory authorities should embrace in order to effectively regulate the relevant services.
One of ERGA’s recommendations pertains to the platforms’ limited liability. Its implementation to online content regulation should be contingent on their obligation to build in safety features into the design and operation of the systems and services they provide. Such approach will allow a withdrawal of the benefits of limited liability to be considered when a systemic deficiency in measures provided by the platform is established by a national regulatory authority. The provisions of Article 28b of the revised AVMS Directive (referring to the obligations of the video-sharing platforms (VSP)) could be considered a helpful reference point in setting out an appropriate level of protection for users (without prejudice to an exploration of whether varied or stronger rules may be appropriate). Having in mind that they should not have “general monitoring obligations” and should respect freedom of expression, service providers might furthermore be required to demonstrate proactive actions, such as “stay down” measures, in relation to certain clearly identifiable types of illegal content (e.g. terrorist content) to retain the benefits of limited liability.
ERGA’s experience in monitoring the implementation of the voluntary European Code of Practice on Disinformation demonstrates the need for clear and effective mechanisms of accountability to be in force in respect of platforms’ activities. These mechanisms should be based in law and safeguard European values. While the general principle of a graduated and conditional liability for online intermediary services seems appropriate to be retained, the European Commission might consider to updateg the definitions laid down in the e-Commerce Directive. The formulation of new definitions will reflect better the reality in which today’s digital services operate. It would also allow for greater clarity regarding their material scope of application and a more proportionate allocation of responsibility for services.
Further in its position ERGA agrees that the advantages of the minimum harmonisation of rules for online content regulation at EU level is twofold: on the one hand, it would bring legal certainty to online content providers and it would accomplish more effective protection for
European audiences, on the other. A minimum harmonised approach also reduces the risk that could stem from possible Member States’ divergent approaches. Last but not least, it guarantees that EU online content regulation is grounded in the long-lasting recognition of Member States’ diverse media and cultural policies. The introduction of new rules for online disinformation, misinformation, malinformation and political advertising is also strongly supported by ERGA. So far online platforms have participated on a voluntary basis in the monitoring of the Code of Practice on Disinformation implementation. ERGA shares its concern about the willingness of the platforms to collect data in the nature and form requested by the NRAs. Within this context ERGA draws attention to its 2020 report ‘Assessment of Compliance with the Code of Practice commitments’ and the recommendations there. The opinion of the group is that it would be appropriate these proposals to be debated together with the DSA Package, including a co-regulatory mechanism, as well as online content platforms’ commitment to comply with clear reporting obligations, more harmonised procedures and suitable timeframes. In addition, ERGA considers that the role and the functions of the new European Digital Media Observatory should be more thoroughly explored.
In order to cope with their new obligations the NRAs’ compliance and enforcement powers should be underpinned by a series of explicitly stated principles. In the new regulatory context effectiveness (i.e. to facilitate an effective regulatory response and act as a deterrent to future breaches of statute); proportionality (i.e. to act proportionately, particularly having regard to the wider objectives of the regulator in promoting freedom of expression); flexibility (i.e. to facilitate an appropriate range of responses, tailored to the specific circumstances of a breach, as well as the nature of the content and platform upon which the content is carried); risk-based approach (i.e.to ensure that regulatory actions are targeted at content likely to have greatest impact or cause most harm); evidence-based approach (i.e. to ensure the regulator’s response is underpinned by a credible evidence base); and cooperation (i.e. to co-operate and regularly engage with online content platforms, in addressing issues in a timely manner) merit particular focus.
In light of the above, extra administrative competences for NRAs such as the power to compel regulated entities to submit reports and statements of commitments in respect of their legal obligations; the power to compel regulated entities to adhere to statutory recommendations and/or to supply a compliance plan of action; the power to request the supply of data and information in a format specified by the regulator; the power to issue public findings and recommendations arising from the regulator’s compliance activities and from an inspection, investigation or audit; the power to issue notifications, warning notices and final warning notices to services in relation to failures of compliance and the power to seek injunctive relief to enforce the notices of the regulator; the power to issue administrative fines, etc. could also be envisaged.
Compiled by Media 21 Foundation (Link)