Responsabilidad del intermediario en el mercado común digital de la UE desde la Directiva de comercio electrónico hasta la Ley de Servicios Digitales
| Autor | Thomas Hoffmann, Sander Sagar |
| Cargo | Departamento de Derecho, Escuela de Negocios y Gestión, Universidad Tecnológica de Tallin/Universidad Tecnológica de Tallin (TalTech) |
| Páginas | 1-12 |
https://idp.uoc.edu
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
1
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
Dossier “Europe facing the digital challenge: obstacles and solutions”
Intermediary Liability in the EU
Digital Common Market
– from the E-Commerce Directive
to the Digital Services Act
Sander Sagar
Tallinn University of Technology (TalTech)
Thomas Hoffmann
Tallinn University of Technology (TalTech)
Date of submission: May 2021
Accepted in: July 2021
Published in: December 2021
Abstract
The European Union is committed to its transition towards climate neutrality and digital leadership,
and synergies to be created in the EU Digital Common Market provide ample opportunities to achieve
these goals: While from an economic perspective, the maximisation of market opportunities and the
creation of a globally competitive digital economy are desirable, the transition must be technologically
and ecologically sustainable and additionally compatible with established EU consumer protection
standards. The latter is especially relevant in terms of the liability of online intermediaries for digital
services, taking into account the rapid transformation of the digital architecture and the emergence
of new major digital platforms for sales and services. This chapter, which is based on the Bachelor
thesis handed in by Sander Sagar and supervised by Thomas Hoffmann for graduation at TalTech Law
School, Tallinn University of Technology, intends to elucidate how the transition towards a common
digital market is legally established in practice using as an example the adoption of the intermediaries’
liability regime to a digitalized environment from the E-Commerce Directive to the Digital Services Act.
Keywords
digital common market; intermediaries’ liability; e-commerce directive, digital services act
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
2
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
Responsabilidad del intermediario en el mercado común digital
de la UE: desde la Directiva de comercio electrónico hasta la Ley
de Servicios Digitales
Resumen
La Unión Europea está comprometida con su transición hacia la neutralidad climática y el liderazgo
digital, y las sinergias que se crearán en el mercado común digital de la UE brindan amplias oportu-
nidades para lograr estos objetivos: Si bien desde una perspectiva económica, la maximización de las
oportunidades de mercado y la creación de una economía digital globalmente competitiva son desea-
bles, la transición debe ser tecnológica y ecológicamente sostenible y, además, compatible con las
normas de protección del consumidor establecidas por la UE. Esto último es especialmente relevante
en términos de la responsabilidad de los intermediarios en línea por los servicios digitales, teniendo en
cuenta la rápida transformación de la arquitectura digital y la aparición de nuevas plataformas digita-
les importantes para ventas y servicios. Este capítulo pretende dilucidar cómo la transición hacia un
mercado digital común se establece legalmente en la práctica en el ejemplo de la adopción del régimen
de responsabilidad de los intermediarios en un entorno digitalizado, desde la Directiva de Comercio
Electrónico hasta la Ley de Servicios Digitales.
Palabras clave
Mercado común digital, responsabilidad de los intermediarios, directiva de Comercio Electrónico, Ley
de Servicios Digitales
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
3
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
Introduction
The E-Commerce Directive (hereinafter ECD) adopted by
the EU on 8 June 2000,
1
established core principles for on-
line services in the EU and forms as such an essential part
of the EU Digital Single Market. Nonetheless, among other
shortcomings, the liability regime for online intermediar-
ies established by the ECD has not adequately addressed
the rapid development of the digital services market, and
ever since, the issue of intermediary liability has been the
object of continuous debate, which has ultimately led to
the drafting of a preliminary legislative proposal referred
to as the Digital Services Act (hereinafter DSA).
2
Although the EU has attempted to implement further
regulatory measures alongside the ECD as e.g. the Audio-
visual Media Services Directive (AVMSD)
3
and the Digital
Single Market Directive (DSM),
4
these additional frame-
works have raised legal challenges in terms of their com-
patibility with the ECD. Additionally, EU Member States
have adopted their own national legislation to regulate
the digital services market, which has further increased
the legal fragmentation and uncertainty of providing
cross-border digital services in the EU. In response to
these developments in the digital services economy, the
European Commission has announced the adoption of the
DSA which would attempt to harmonize and revise the
current EU legislative framework surrounding the liability
of digital service providers. This chapter, which is based
on the Bachelor thesis handed in by Sander Sagar and
supervised by Thomas Hoffmann for graduation at TalT-
ech Law School, Tallinn University of Technology, will first
examine the ECD and the reasons why it had been unable
to adequately respond to contemporary challenges of
transforming digital platform economies. Furthermore,
the key proposals of the DSA regarding the liability regime
1. Directive (EU) No 2000/31 of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ L 178, 17.7.2000, p. 1–16.
2. Commission Proposal COM/2020/825 for a Regulation of the European Parliament and of the Council on a Single Market for Digital
Services (Digital Services Act) and Amending Directive 2000/31/EC.
3. Directive (EU) No 2010/13 of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid
down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual
Media Services Directive), OJ L 95, 15.4.2010, p. 1–24.
4. Directive (EU) No 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital
Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92–125.
5. Directive (EU) No 2000/31 of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in
the Internal Market (Directive on electronic commerce), OJ L 178, 17.7.2000, p. 1.
of online intermediaries shall be discussed, and thereafter,
proposals for future reforms of the DSA shall be made.
1. The E-Commerce Directive
Implemented on 8 June 2000 by the European Union,
the ECD is one of the fundamental legislative frameworks
for digital services. It facilitated the establishment and
the development of the EU’s electronic Single Market for
digital service providers. The primary objective of the
E-Commerce Directive was to minimize legal obstacles to
electronic commerce and the functioning of the digital
market, through facilitating the free movement of goods
and services and enabling freedom of establishment for
digital platforms across the EU. Via the adoption of the
E-Commerce Directive, the European Union intended to
achieve a high level of Community harmonization, pro-
mote the digital economy for small- and medium-sized
enterprises and ensure higher consumer confidence and
legal certainty within the digital market.
5
The ECD’s liability
regime extends not only to the traditional internet service
provider sector, but also encompasses online intermediar-
ies involved with the provision of goods and services on
online platforms (Edwards, 2005, pp. 93-100). The ECD
covers a wide spectrum of activities online, including the
selling of goods online on e-commerce platforms such as
Amazon and AliExpress, the provision of online commer-
cial information for revenue purposes, the offering of on-
line search engine tools (Google, Bing), the transmission of
information or the hosting of information through internet
intermediaries, and many other services that involve elec-
tronic communications through a provider to a recipient in
an online environment (Pearce & Platten, 2000, pp. 363-
378), establishing thus a comprehensive legal framework
which accounts for the majority of digital service platforms
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
4
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
and online intermediaries in the European digital market.
They include the selling of goods and the provision of on-
line information or commercial communications, the sup-
plying of tools allowing for search, access and retrieval of
data, the transmission of information via a communication
network, providing access to a communication network or
hosting information provided by a service recipient, and
services which are transmitted point-to-point, such as
video on demand or the provision of commercial commu-
nications by electronic mail.
1.1. The Directive’s Liability Exemption
Regime and its transposition
The liability exemption regime of the ECD grants internet
intermediaries legal certainty to provide digital services
without exposing themselves to excessive liability from
damages. The commonly known “Safe Harbour” mecha-
nisms in Articles 12-15 of the ECD attempt to outline and
define the conditions under which internet intermediaries
would be exempt from liability (Montagnani, 2019, pp. 3-11).
In practice, this approach revealed multiple limitations
and shortcomings relating to the divergences of national
implementation of the Directive, numerous differences
resulting from European and national case law adopted
by the courts, a non-harmonized notice and takedown
system, and the uncertainty of the extent and definition of
the liability exemption regime. These issues caused signif-
icant legal uncertainty and difficulties for online interme-
diaries and digital service providers to reliably determine
whether the ECD’s liability exemption framework applied
to them (Madiega, 2020).
Arguably, the inconsistencies resulting from national
divergences to implement the ECD had been caused by
the diversity of interests at stake, involving both the legit-
imate interests of businesses and the fundamental rights
and freedoms of the consumers, urging regulators to
often make difficult compromises for the adoption of the
Directive (Bourdillon, 2012, pp. 154-175). More importantly,
the ECJ did not successfully provide precise interpreta-
tions of the Directive’s liability system to harmonize the
6. European Court of Justice, L’Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie, L’Oréal (UK) Ltd v eBay
International AG, eBay Europe SARL, eBay (UK) Ltd, Stephen Potts, Tracy Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen
Fox, Rukhsana Bi, Case C-324/09, 12 July 2011, para. 124.
application of the ECD (Bourdillon, 2017, pp. 275-293). For
instance, the CJEU ruled in L’Oreal v eBay (addressing
illegal content posted by users on eBay), that eBay cannot
rely on the exemption from liability provided for in that
provision if “it was aware of facts or circumstances on the
basis of which a diligent economic operator should have
realized that the offers for sale in question were unlawful
and, in the event of it being so aware, failed to act expe-
ditiously in accordance with Article 14(1)(b) of Directive
2000/31”,
6
and thus
operators of online marketplaces
have had to either increase their costs to prevent the
circulation of illegal content and IP infringements, or — on
the contrary —, become “sufficiently inactive” to avoid lia-
bility and stay within the scope of the exemption provided
by Article 14 of the ECD (Clark & Schubert, 2011, pp. 880-
888). Additionally, the ruling also refers to a new term,
“diligent economic operator”, which strongly implies that
active online economic operators would have to employ
additional due diligence measures in order to safeguard
their business platforms over the content which is sub-
mitted by the users of their platform. Even though Article
15 of the ECD explicitly exempts internet intermediaries
from “general monitoring obligations”, L’Oreal v eBay
highlights the direction of active online operators for
more active involvement and monitoring of user content
on their platforms. Controversially, online platforms pro-
actively monitoring and implementing additional controls
over the content submitted by the users in order to not
expose themselves to extensive liability would mean that
platforms would have to employ even broader obligations
to filter and control the content of their platforms, which
would likely lead to excessive intervention and the crea-
tion of disproportionate restrictions that would adversely
affect freedom of expression on online platforms (Sloot,
2015, pp. 211-228). Additionally, some national courts — as
.e.g. in France — have pointed out that internet service pro-
viders should implement a more active and preventative
approach to online content moderation against copyright
infringements, resulting in further legal uncertainty and
fragmentation for cross-border internet service providers,
which would have to additionally consider whether these
obligations also apply in the jurisdictions of other Member
States (Mlynar, 2014, pp. 1-28).
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
5
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
As a result of the divergences in both European and na-
tional case law, internet service providers would rather
actively protect their own rights through private agree-
ments, out-of-court settlements and self-censorship by
removing the flagged content on request, rather than pro-
tecting the right to freedom of expression and the circula-
tion of online content submitted by the recipients of their
services as it is a significantly more costly alternative to
maintain (Marušić, 2016, pp. 4-17). As a result, the balanced
approach considering the legitimate rights and interests
for both businesses and consumers as intended by the
ECD had been jeopardized (Eecke & Ooms, 2007, pp. 3-9).
1.2. Non-Harmonized Notice-
and Takedown System
Additionally, the ECD did not impose a harmonized no-
tice-and-takedown system, but merely suggested that
Member States should take proper measures and initia-
tives to adopt the notice-and-takedown systems within
their own national legislative frameworks. The Directive’s
approach however, lead to the further legal fragmentation
of the ECD, as the Directive did not explicitly outline spe-
cific guidelines for the implementation of notice-and-take-
down systems. Therefore, Member States eventually
developed differing practices, which involved varying stat-
utory forms and notice systems for users and platforms
alike (Eecke, 2011, pp. 1455–1502). Moreover, some Member
States implemented special regulatory bodies dealing
with notice-and-takedown forms and the filtering of such
notices, resulting in further variety in the procedure and
therefore adversely affecting the digital harmonization
goal of the Directive (Barceló & Koelman, 2000, pp. 231-
239). More importantly, the absence of a harmonized
notice-and-takedown system significantly undermined
the freedom of expression and legal certainty of users
on online platforms who send out notice-and-takedown
requests to internet service providers. Service providers
are thus more inclined to take down their online services
in order to avoid injunctions or liability, which has the
potential effect to hinder public discussion and criticism
(Baistrocchi, 2003, pp. 111-130). Furthermore, the lack of
a harmonized notice-and takedown system also has the
potential to promote the activity of unfair commercial
practices, wherein competitors could effortlessly send
out unfounded claims towards their competitors without
facing significant penalties by supervisory authorities
(Baistrocchi, 2003, pp. 111-130). Although there had been
no harmonized notice-and takedown system implemented
by the Directive, online intermediaries often do not pos-
sess the knowledge and personnel to evaluate whether
certain information is illegal and, even if they receive a
notice-and-takedown request, they should not be in the
position to have the obligation to objectively assess and
evaluate whether potentially illegal or defamatory mate-
rial should be available or not on the online platforms to
safeguard the freedom of expression and the fundamental
interests of the users of the platform (Barceló & Koelman,
2000, p. 130).
1.3. Online Intermediaries and the Use
of Automated Filtering Measures
Large online platforms and service providers have started
to employ automated filtering measures to remove illegal
or infringing content from their platforms for efficiency,
risk management and commercial purposes. Considering
the massive influx of information and data transmitted
and stored on online platforms, traditional governance
mechanisms have proven unable to govern and enforce
the illegal or harmful practices shared by users on online
platforms, thus shifting the burden of law enforcement
to the hands of online intermediaries, particularly large-
scale online intermediaries such as Google and Amazon
(Koren & Perel, 2018).
While algorithmic content enforcement measures are the
emerging trend for “mega-platforms” with millions of
users, they entail certain risks for rights holders and end
consumers that concern the transparency and account-
ability of such mechanisms and the proper standards of
due process. These would significantly affect legitimate
interests of online users’ rights to privacy and freedom of
expression and the protection of fair commercial practic-
es, if the automated filtering measures are not properly
implemented by the online intermediaries (Frosio, 2017,
pp. 18-46). Frosio and Mendis convincingly argue that the
proactive monitoring duty placed on online service pro-
viders results in an increased use of automated filtering
and algorithmic enforcement measures to monitor the
content of users on online platforms, which could signif-
icantly limit and undermine the users’ freedom of expres-
sion, rights to procedural justice, and the usage of public
domain content (Frosio & Mendis, 2019, pp. 544-565).
According to Riis, the shift towards algorithmic content
moderation is a significant departure from the traditional
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
6
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
liability regime under the ECD since algorithmic content
moderation is highly controlled and developed by private
industry stakeholders and employed by major online inter-
mediaries without supervision and legislative intervention
through secondary law or regulatory harmonization on a
Community level (Riis, 2018, pp. 1-21). Algorithmic content
moderation measures employed by internet intermediar-
ies spark particular concerns regarding the problem of
over-enforcement, as online service providers and major
internet intermediaries — being profit-oriented businesses
that seek to mitigate costs — would be more inclined to
employ algorithms which would, through the excessive
removal of content submitted by the users, prevent dis-
pute and litigation risks and as a result undermine the
legitimate rights and interests of the involved end-users
of online platforms (Riis & Petersen, 2016, pp. 228–251).
Another potential concern revolves around the account-
ability and transparency of algorithmic filtering tools due
to their complexity and scalability, as they are likely to
function as “black boxes”
7
which automatically regulate
the behaviour and content of users on online platforms
without the opportunity of procedural oversight (Koren
& Perel, 2016, pp. 473-532). Numerous studies have
shown that automated filtering tools and technologies
are currently mostly capable of identifying the contents
within particular files, and often lack the capacity to make
complex and subjective judgement decisions on whether a
particular case constitutes infringing or unlawful material,
which would likely still require the traditional intervention
by courts and legal practitioners (Spoerri, 2019, pp. 173-
186). While algorithms are certainly capable of making
information-based decisions on filtering and removal of
certain online content, they are still argued to be imper-
fect tools which cannot maintain a one hundred per cent
accuracy rate, meaning that some inconsistencies and
false positives would eventually undermine the platform
users’ fundamental rights to information and freedom of
expression in the online environment.
8
2. The Digital Services Act
In response to the rapid development of the changing
landscape of the modern digital world and the emergence
7. On further interferences of such decision-making algorithms see Hoffmann, Thomas. “The Impact of Digital Autonomous Tools on Private
Autonomy”. Baltic Yearbook of International Law Online, vol. 18, pp. 18-31.
8. Riis (2018), supra nota 27, 1.
of new digital platform economies, the European Com-
mission has drafted a preliminary legislative proposal for
review in the European Parliament, which is referred to as
the Digital Services Act, which would amend the ECD. Built
on the fundamental principles outlined in the ECD, the DSA
seeks to create a durable and harmonized legal framework
that enables the provision of innovative digital services
within the Community, while safeguarding the fundamen-
tal rights of users on online platforms through establish-
ing additional measures for fairness, transparency and
accountability for the moderation of content on online
digital platforms. The proposal outlines clear responsibil-
ities and accountability mechanisms for the providers of
intermediary services, particularly for large social media
platforms and online marketplaces, through establishing
clear due-diligence obligations and notice-and-takedown
procedures for the removal of illegal and harmful content
online in order to improve the users’ safety on online
platforms. Considering the impact of very large online
platforms within the European economy and society, the
proposal sets even higher standards of accountability and
transparency for the use of risk management tools. The
DSA creates increased obligations for the risk assessment
of automated filtering tools and imposes the creation of
appropriate risk management and auditing systems to
protect the integrity and transparency of the services of
very large online platforms against the use of manipula-
tive techniques which would undermine the functioning of
the digital economy. The proposal outlines that the scope
of additional obligations and measures which would apply
to very large online intermediaries in the Union, would be
applicable if the platform has approximately more than
45 million monthly average recipients of the service. The
specific changes and the impact of the provisions outlined
in the DSA will be examined in the following sub-chapters.
2.1. New obligations introduced by the DSA
In general, the proposal seeks to maintain the main princi-
ples and definitions established in the ECD without major
significant changes. Nonetheless, uniform definitions have
been added, as e.g. for “recommender systems” under
article 2 (o), “advertisement” under article 2 (n) and – im-
portantly – for “content moderation” in article 2 (p) DSA.
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
7
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
Chapter II DSA outlines in articles 3-9 the general liability
exemption regime for internet intermediaries, which does
not significantly differ from the fundamental principles.
Nonetheless, art 6 DSA goes clearly beyond the ECD in
terms of “voluntary own-initiative investigations and legal
compliance”, providing an important safety mechanism for
online internet intermediaries to remain within the liability
exemption regime as previously under the ECD; voluntary
actions taken by intermediaries would place them outside
the scope and protection of the liability exemption regime
and thus expose them to civil liability and potential dam-
age claims (Savin, 2021, pp. 15-25).
Additional procedural
measures are also introduced in Articles 8 and 9 DSA on
intermediaries’ obligations to inform national judicial or
administrative authorities about the specific action taken
upon receipt of allegedly unlawful content.
The most important changes proposed by the DSA are
constituted in chapter III, which outline new due diligence
and transparency obligations applicable for internet inter-
mediaries. For instance, article 17 DSA outlines an internal
electronic complaint handling mechanism which enables
users to lodge complaints against the decisions taken by
online intermediaries, thus effectively creating further
accountability and transparency measures as online inter-
mediaries are unable to completely base their decisions
for the abovementioned removal of information or data
solely on automated filtering tools, which would safeguard
the users’ right to an additional appeal process; however,
this could significantly increase the costs of operation for
intermediaries (Savin, 2021, pp. 15-25).
Another tool newly
introduced by the DSA is the concept of “trusted flaggers”
in art. 19 DSA, which provides to entities specializing in
tackling illegal and unlawful content a priority status to
handle complaints submitted by ISP’s, as well as the op-
tion to suspend the provision of services to recipients who
frequently provide manifestly illegal content in art. 20
DSA (provided that appropriately justified). Further con-
sumer protection mechanisms are outlined in article 22
DSA, which obliges online intermediaries to ensure that
traders using the intermediary’s platform provide accu-
rate information, and otherwise to suspend the provision
of their services to the trader.
Taking into consideration the impact and role of very large
online platforms (defined in art 25 DSA) on the European
economy and society, the DSA sets increasingly higher
standards of transparency and accountability for the mon-
itoring of the content of such platforms in Articles 25-37
DSA. For instance, article 26 DSA requires such platforms
to address issues related to any systemic risks stemming
from the functioning of their services within the Union
and additionally to introduce “reasonable, proportionate
and effective” mitigation measures for these risks in art.
27 DSA.
2.2. The DSA on intermediaries’ liability
– an interim solution?
In general, the DSA succeeds to address the gaps and
challenges which have emerged since the adoption of the
ECD through implementing harmonized notice-and-take-
down mechanisms, creating additional measures for
online intermediaries to provide detailed reports to
ensure that transparency and accountability measures
are followed with respect to online content moderation,
ensuring compliance through steep fines and injunctions
in case of non-compliance and sets even higher standards
for very large online platforms to manage systemic risks
resulting from the crucial role these major platforms play
in the modern digital age of the EU’s economy and society.
Regarding the abovementioned considerations outlined in
the proposed DSA, the EU faces two primary challenges for
the creation of a uniform and harmonized digital services
market in Europe. The first issue concerns the necessity
for high levels of harmonization on the EU level, as the
limitations from the fragmented legal framework created
by the ECD should certainly be avoided. Nonetheless, the
EU ought to navigate carefully, as the DSA could have
major implications for the engagement of large platform
economies, which could isolate the EU common market
from global digital platform economies. Raising barriers to
entry could deter digital businesses from innovating their
services and entering the market, if the enforcement of
rules and measures outlined in the DSA are burdensome
or too excessive for online intermediaries to comply with
(Rodríguez, 2021, pp. 75-86). Despite the considerable
changes proposed in the DSA itself, the success of the DSA
will nonetheless considerably depend on the subsequent
legislation adopted by European and national legislative
and regulatory bodies as well as substantive decisions
taken by judicial authorities, which will determine in detail
what constitutes illegal online content and the extent as
to how to balance the competing fundamental rights in
order to create a stable and functioning digital economy
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
8
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
within the Union for both online intermediaries and users
alike.
9
Furthermore, some concerns could arise with the
overall complexity of due diligence and transparency re-
porting requirements prescribed for online intermediaries
within the DSA which, as a result, could to a certain extent
disincentivize the recipients of intermediary services to
acquaint themselves with the reports on the activities
of online intermediaries. Although there are significant
uncertainties regarding the use of automated filtering
measures, the DSA must ensure that it is adequately
balanced and implements the highest possible standards
to safeguard the recipients of online services and, on the
other hand, make sure that the provisions are not too
excessive and do not prevent technological progress and
innovation within the sphere of digital services.
Nonetheless, the DSA has also certain shortcomings, but
they could be alleviated by minor reforms. Firstly, in order
to maintain high levels of consumer protection within the
digital services economy, an extension of Article 22 which
concerns the traceability of traders to include micro and
small enterprises is advisable.
10
Currently, the DSA ex-
cludes additional provisions applicable to online platforms
if the online platform qualifies as a micro or small enter-
prise within the meaning of the Annex to Recommenda-
tion 2003/361/EC (see art 16 DSA),
11
with the criteria to
be qualified as a micro or small enterprise according to
the number of workers or annual turnover serving as a
potential loophole. Moreover, online businesses providing
goods and services on digital marketplaces are a very
convenient business model for micro or small enterprises.
Additionally, there is a high chance for the circulation of
illegal or counterfeit goods and unlawful content in the
online environment through micro and small enterprises;
the criteria to include micro and small enterprises in the
provisions of section 3 DSA should be based rather on
a risk-assessment approach of their services instead of
their size and annual turnover.
9. Savin (2021), supra nota 33, 16.
10. Opinion of the European Economic and Social Committee of 29 April 2021 on the Proposal for a Regulation of the European Parliament
and of the Council on a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC.
11. Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, OJ L 124, 20.5.2003,
p. 36–41.
Conclusion
Digital platform economies have fundamentally trans-
formed the digital architecture and the provision of goods
and services within the contemporary European digital
economy, and the establishment of a properly functioning
and harmonized European digital market has thus become
a priority. Since the adoption of the ECD in 2000, signifi-
cant shortcomings concerning the digital legal framework
and intermediary liability regime have arisen regarding
their capacity to effectively safeguard the objectives and
the protection of fundamental freedoms outlined in the
ECD.
In response to these challenges, the European Commis-
sion has put forward a preliminary legislative proposal for
a Digital Services Act reforming the legal framework of
the provision of digital services and the liability regime of
online intermediaries. Although the original intermediary
liability protection mechanisms have been relatively un-
changed, a harmonized notice-and-takedown system has
been implemented, including the creation of new internal
complaint handling systems and alternative dispute reso-
lution systems to safeguard the principles of due process
and transparency for the users of online platforms which
would guarantee the users’ rights to exercise their rights
to freedom of expression and information. Additionally,
a more specialized set of rules has been carved out for
very large online platforms which would be subject to
increased procedural and regulatory oversight, with the
introduction of extra layers of transparency, accountabili-
ty, and reporting requirements for the moderation of con-
tent on such platforms, wherein additional enforcement
measures which include steep fines for violations of the
proposed measures would ensure the compliance with the
DSA. Nonetheless, the EU ought to seek a careful balance
between the impact of increased regulations and organi-
zational measures on online intermediaries to prevent the
EU common market from becoming isolated in the global
digital platform economy. Excessively increasing entry
barriers for new online intermediaries can have consid-
erable negative effects on the development of the digital
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
9
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
economy, innovation and the ability to conduct business
within the EU. The DSA could further take into account
the diversification of criteria on the inclusion of micro and
small enterprises within the legal framework in section 3
DSA, applying a rather risk-assessment approach of their
services instead of taking into account merely their size
and annual turnover.
In conclusion, although the current proposal of the DSA
could still be considered imperfect, it represents an am-
bitious development to reform the EU digital services
economy and can be considered an important legislative
proposal designed to protect fundamental rights and in-
terests of both online intermediaries as well as recipients
of intermediary services.
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
10
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
References
BAISTROCCHI, P. A. (2003). “Liability of Intermediary Service Providers in the EU Directive on Elec-
tronic Commerce”. In: Santa Clara High Technology Law Journal, vol. 19, no. 1, pp. 111-130.
BARCELÓ, R. J.; KOELMAN, K. J. (2000). “Intermediary Liability: Intermediary Liability in the E-Com-
merce Directive: So Far So Good, But It’s Not Enough”. In: Computer Law & Security Review, vol. 16,
no. 4, pp. 231-239 [online]. DOI: https://doi.org/10.1016/S0267-3649(00)89129-3
BOURDILLON, S. S. (2012). “Sometimes one is not enough! Securing freedom of expression, encour-
aging private regulation, or subsidizing Internet intermediaries or all three at the same time: the
dilemma of Internet intermediaries’ liability”. In: Journal of International Commercial Law and
Technology, vol. 7, no. 2, pp. 154-175.
BOURDILLON, S. S. (2013). “Online monitoring, filtering, blocking… What is the difference? Where to
draw the line?”. In: Computer Law & Security Review, vol. 29, no. 6, pp. 702-712 [online]. DOI: https://
doi.org/10.1016/j.clsr.2013.09.006
BOURDILLON, S. S. (2017). “Internet Intermediaries as Responsible Actors? Why It Is Time to Rethink
the E-Commerce Directive as Well”. In: TADDEO, M. L.; FLORIDI, L. (eds). The Responsibilities of
Online Service Providers, pp. 275-293 [online]. New York: Springer Publishing. DOI: https://doi.
org/10.1007/978-3-319-47852-4_15
CLARK, B.; SCHUBERT, M. (2011). “Odysseus between Scylla and Charybdis? The ECJ rules in L’Oréal v
eBay”. In: Journal of Intellectual Property Law & Practice, vol. 6, no. 12, pp. 880-888 [online]. DOI:
https://doi.org/10.1093/jiplp/jpr143
EDWARDS, L. (2005). “The Problem of Intermediary Service Provider Liability”. In: EDWARDS, L. (ed.).
The New Legal Framework for E-Commerce in Europe, pp. 93-100. Oregon: Hart Publishing.
EECKE, P (2011). “Online service providers and liability: A plea for a balanced approach”. In: Common
Market Law Review, vol. 48, no. 5, pp. 1455-1502.
EECKE, P.; OOMS, B (2007). “ISP liability and the e-commerce directive: a growing trend toward greater
responsibility for ISPs”. In: Journal of Internet Law, pp. 3-9.
FROSIO, G. F. (2017). “Reforming Intermediary Liability In The Platform Economy: A European Digital
Single Market Strategy”. In: Northwestern University Law Review Online, vol. 112, pp. 18-46 [online].
DOI: https://doi.org/10.31235/osf.io/w7fxv
FROSIO, G.; MENDIS, S. (2019). “Monitoring and Filtering: European Reform or Global Trend?”. In: FRO-
SIO, G. F. (ed.). Oxford Handbook of Online Intermediary Liability, pp. 544-565 [online]. England:
Oxford University Press. DOI: https://doi.org/10.1093/oxfordhb/9780198837138.013.28
HOFFMANN, T. (2020). “The Impact of Digital Autonomous Tools on Private Autonomy”. In: Baltic
Yearbook of International Law Online, vol. 18, pp. 18-31.
KOREN, N. E.; PEREL, M. (2016). “Accountability In Algorithmic Copyright Enforcement”. In: Stanford
Technology Law Review, vol. 19, no. 3, pp. 473-532.
KOREN, N. E.; PEREL, M. (2018). “Algorithmic Governance by Online Intermediaries”. In: BROUSSEAU,
E.; GLACHANT, J. M.; SGARD, J. (eds.). Oxford Handbook of Institutions of International Economic
Governance and Market Regulation. Oxford: Oxford University Press.
MADIEGA, T. (2020). “Reform of the EU liability regime for online intermediaries”. Brussels: European
Parliamentary Research Service.
MARUŠIĆ, B. (2016). “Gate Keeper or Trespasser? EU ISP Liability Regime and its Privacy Implica-
tions”. In: NIR, no. 1, pp. 4-17.
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
11
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
MLYNAR, V. A. (2014). “Storm in ISP Safe Harbor Provisions: The Shift From Requiring Passive-Reactive
to Active-Preventative Behavior and Back”. In: Intellectual Property Law Bulletin, vol. 19, no. 1, pp. 1-28.
MONTAGNANI, M. L. (2019). “New Obligations for Internet Intermediaries in the Digital Single Market
– Safe Harbors in Turmoil?”. In: Journal of Internet Law, vol. 22, no. 7, pp. 3-11 [online]. DOI: https://
doi.org/10.2139/ssrn.3361073
MONTAGNANI, M. L.; TRAPOVA, A. Y. (2018). “Safe harbours in deep waters: a new emerging liability re-
gime for Internet intermediaries in the Digital Single Market”. In: International Journal of Law and
Information Technology, vol. 26, no. 4, pp. 294-310 [online]. DOI: https://doi.org/10.1093/ijlit/eay013
Opinion of the European Economic and Social Committee of 29 April 2021 on the Proposal for a Regu-
lation of the European Parliament and of the Council on a Single Market for Digital Services (DSA)
and amending Directive 2000/31/EC.
PEARCE, G.; PLATTEN, N. (2000). “Promoting the Information Society: The EU Directive on Elec-
tronic Commerce”. In: European Law Journal, vol. 6, no. 4, pp. 363-378 [online]. DOI: https://doi.
org/10.1111/1468-0386.00113
RIIS, T. (2018). “Leaving the European Safe Harbor, Sailing Towards Algorithmic Content Regulation”.
In: Journal of Internet Law, vol. 22, no. 7, pp. 1-21 [online]. DOI: https://doi.org/10.2139/ssrn.3300159
RIIS, T.; PETERSEN, C. S. (2016). “Private enforcement of IP law by internet service providers: notice
and action procedures”. In: RIIS, T. (ed.). User Generated Law: Re-Constructing Intellectual Property
Law in a Knowledge Society, pp. 228-251. Cheltenham: Edward Elgar Publishing.
RODRÍGUEZ, T. (2021). “The background of the DSA: looking towards a platform economy”. In: Journal
of the Academy of European Law, vol. 22, pp. 75-86 [online]. DOI: https://doi.org/10.1007/s12027-
021-00654-w
SAVIN, A. (2021). “The EU DSA: Towards a More Responsible Internet”. In: Journal of Internet Law, vol.
24, no. 7, pp. 15-25.
SPOERRI, T. (2019). “On Upload-Filters and other Competitive Advantages for Big Tech Companies un-
der Article 17 of the Directive on Copyright in the Digital Single Market”. In: Journal of Intellectual
Property, Information Technology and E-Commerce Law, vol. 10, no. 2, pp. 173-186.
VAN DER SLOOT, B. (2015). “Welcome to the Jungle: The Liability of Internet Intermediaries for Privacy
Violations in Europe”. In: Journal of Intellectual Property, Information Technology and E-Commerce
Law, vol. 6, no. 3, pp. 211-228.
Recommended citation
SAGAR, Sander; HOFFMANN, Thomas (2021). “Intermediary Liability in the EU Digital Common Market
— from the E-Commerce Directive to the Digital Services Act”. IDP. Internet, Law and Politics E-Journal.
No. 34. UOC [Accessed: dd/mm/aa] http://dx.doi.org/10.7238/idp.v0i34.387691
The texts published in this journal, unless otherwise indicated, are subject to a Creative
Commons Attribution No Derivative Works 3.0 Spain licence. They may be copied, distribut-
ed and broadcast provided the the author, the journal and the institution that publishes
them (IDP. Revista de Internet, Derecho y Política; UOC) are cited. Derivative works are not
permitted. The full licence can be consulted on http://creativecommons.org/licenses/by-
nd/3.0/es/deed.es.
https://idp.uoc.edu
Universitat Oberta de Catalunya
Intermediary Liability in the EU Digital Common Market – from the E-Commerce Directive to the Digital Services Act
IDP No. 34 (December, 2021) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
12
2021, Sander Sagar and Thomas Hoffmann
of this edition: 2021, Universitat Oberta de Catalunya
About the authors
Sander Sagar
Tallinn University of Technology (TalTech)
sagarsander@gmail.com
Graduated in his BA studies in law at the Department of Law (TalTech Law School) at Tallinn University
of Technology, Estonia, in Summer 2021 with distinction. His main fields of research focused so far
on EU Law, Consumer Law, the E-Commerce Directive and the Digital Services Act. After graduation,
Sander has been an intern at the Law Firm Sorainen at the Competition and Regulatory law depart-
ment.
Thomas Hoffmann
Department of Law, School of Business and Governance, Tallinn University of Technology
thomas.hoffmann@taltech.ee
Tenured Assistant Professor of Private Law at the Department of Law (TalTech Law School) at Tallinn
University of Technology, Estonia. He graduated (2005) and also obtained his PhD in law at the Uni-
versity of Heidelberg (2006). After his admission to the German bar in 2008 and obtaining an LL.M.
in Polish business law from Jagiellonian University in Kraków, he worked as an associated lawyer in
the real estate department of Noerr LLP in their offices in Kyiv and Berlin. Consecutively he became
research fellow at the Institute of East European Law in Kiel, Germany (2009), where he had a special
research focus on international insolvency law. In 2011, he relocated to the University of Tartu (Estonia)
to be appointed DAAD Lecturer in Law. He became Associate Professor at the Department of Law
(TalTech Law School) in 2016, before he was elected Assistant Professor of Private law at the same
institute in 2019. Thomas’ research focusses on comparative private law, here especially in insolven-
cy law, private international law, contracts in digital environments and consumer law. He provided
comprehensive research on Estonian, German and international law to various stakeholders within
numerous EC tenders. Thomas keeps track with forensic issues by serving as Of Counsel for the firm
bnt Attorneys in CEE in Tallinn. A list of his publications is available at: http://bit.ly/1fz4RkT.
