REGULATING DIGITAL PLATFORMS: WILL THE DSA CORRECT ITS PREDECESSOR’S DEFICIENCIES?

Abstract

The E-Commerce Directive 2000/31 (ECD) has been the law applicable to Internet intermediaries related to their liability for third-party content on their platform, electronic contracts, and e-commerce activities for more than twenty years. Its core is the harmonised immunity regime established in Articles 12–15. These rules grant immunity to the providers of mere conduit, caching, and hosting from liability arising from infringing content made available by their users on their platform. However, the ECD has been criticised for not fully achieving its objective of uniformity, not keeping up with the pace of the Internet, and not effectively protecting the parties’ fundamental rights as it gives crucial discretion to the intermediaries. The ECD is to be replaced with the Digital Services Act (DSA). The aim is to regulate new means of digital services (especially Big Tech) while benefiting from their ‘technical and operational ability to act against specific items of illegal content’ in preventing the availability of illegal content and protecting fundamental rights. Its framework is based on the prevailing idea of acknowledging digital platforms as responsible actors. It establishes new sets of tiered due-diligence obligations for digital platforms to comply with while reproducing the immunity regime of the ECD. Its framework appears to target those issues arising from the ECD. However, whether it can deliver this promise calls for discussion. This paper aims to address this question. To do so, it will first try to identify the deficits of the ECD. Second, and more importantly, it will seek to scrutinise the DSA to evaluate if it provides the answers to the issues that the ECD fell short of © This work is licensed under the Creative Commons Attribution – Non-Commercial – No Derivatives 4.0 International License