This post was collectively written by Marion Ho-Dac and Matthias Lehmann. It consists of two parts. Part two can be found here.
The Digital Services Act (DSA) is a landmark legislation in many respects, also regarding its volume (102 pages in the O.J., no less than 156 Recitals). It will force online platforms such as Youtube, Google or Amazon to be more responsible for the contents posted on them. It has been adopted on 19 October 2022 and will (mainly) be applicable from 17 February 2024 (Article 93(2) DSA). Inter alia, it partially amends the e-commerce Directive (Art. 89 DSA) but preserves its famous “internal market clause”.
The DSA’s Indifference to PIL
The DSA states that it applies “without prejudice to Union rules on private international law” (Recital 10 DSA). However, the text deals with the provision of “intermediary services” within the broader concept of “information society services” (i.e. digital services). These virtually always raise cross-border private-law issues (cf. also Recital 2 DSA). A basic example is a legal action by a user in the EU to request the removal of (allegedly) defamatory online content. The question of the competent court will be resolved by the Brussels I bis Regulation – but what about the applicable law?
The DSA does not resolve such conflicts of laws, but pretends they do not exist. Time and time again, it refers to the “applicable national law”, without giving any indication how this law is to be determined. The Act flies in a high legal stratosphere, hovering over any differences between Member State and other national laws.
Yet, there are instances in which conflicts of laws play a role when applying the DSA (as in all EU regulations dealing with private law issues). The first will be studied in this post and concerns the determination of the applicability of the DSA. The second instance is where the DSA makes reference to a national legal system, for instance with regard to illegal content. This will be the subject of another post.
DSA Scope of Application
In the global digital ecosystem, the application of the DSA, as a uniform body of rules, requires that EU law as such is applicable. This is far from obvious since the vast majority of online platforms are based outside the EU. The DSA’s scope of application focuses on the recipients of the intermediary service – their establishment or location in the EU – “irrespective of where the providers […] have their place of establishment” (Article 2(1) DSA). The recipients are those who simply “use” intermediary services, “in particular for the purposes of seeking information or making it accessible” (Article 3(b) DSA).
The provision on the scope of the DSA presupposes that the providers are “offering” their services to recipients in the EU. Characterising the offering to users in a given territory is a well-known difficulty in private international law. But here the issue is more sensitive than e.g. in Article 17(1)(c) Brussels I bis Regulation as it relates to the scope of the DSA’s regulatory regime.
If the text stopped there, the DSA would have a “global vocation”. Such an approach, which could be described as a kind of “maximalist European unilateralism”, is however unpalatable. It would have large extraterritorial effects, create tensions with third countries and, in practice, would probably be unworkable given the limited capacities of European market supervision.
But the DSA is much more cautious and imposes a “substantial connection” with the EU (Article 3(e) DSA). This is de jure the case when the provider of intermediary services is established in the Union. Otherwise, the text requires that either the provider has a “significant number of recipients of the service” in the EU, or that it “targets” recipients in the EU. The first criterion is based on the economic and societal weight of the foreign operator, the latter on its behaviour. Ultimately, these criteria attenuate the European unilateralist approach and thus make it acceptable on a global scale.
Impact on Conflicts of Laws
The applicability of the DSA has consequences for conflicts of laws in case of international private disputes that fall within its scope. The national law of a third State which would be designated as applicable will be set aside in favour of its provisions, which qualify as overriding mandatory rules. Though the text is silent on this, the DSA certainly is regarded as crucial by the EU for safeguarding its public interests, such as its political, social or economic organisation (cf Article 9(1) Rome I). The DSA thus belongs to the European public policy, which is part of the public policy of the Member States.
Although many of its provisions are of a procedural nature, others may have an incidence on the level of substantive law, for instance tort law. This is in particular the case for those rules that concern liability. They operate in a double-edged sword by excluding liability but only under certain conditions. Where these conditions are not fulfilled, the “free pass” on liability under EU law is suspended.
To illustrate, Art 6 DSA exempts hosting services from liability for the hosted content, but only under certain conditions. One of them is that the provider, upon obtaining knowledge or awareness of illegal content, acts expeditiously to remove or to disable access to it (Article 6(1)(b) DSA). In other words, where the hosting provider does not act expeditiously, the way to liability under the applicable law is open.
Although the rule does not impose liability itself, the underlying policy is that the EU will not countenance hosting service providers that do not honour their duties to remove illegal content expeditiously. This could be interpreted as an overriding mandatory rule, which supersedes foreign rules that give a free pass to all hosting service providers. Of course, this interpretation still needs to be tested in court.