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Digital Services Act – Part Two: Inside the Belly of the Beast

This is the and final part of a post collectively written by Marion Ho-Dac and Matthias Lehmann. Part one is found here.

The previous post has underlined the DSA’s indifference to PIL. In this post, we will take the example of “illegal content” to illustrate the need for a conflict-of-laws approach.

DSA Regulation of Illegal Content and Conflicts of Laws

The DSA obliges intermediaries to inform the authorities of any effect given to their orders regarding illegal content “on the basis of the applicable Union law or national law in compliance with Union law” (Article 9(1) DSA). This formulation echoes the very definition of illegal content described as “any information … that is not in compliance with Union law or the law of any Member State which is in compliance with Union law” (Article 3 (h) DSA). The Act avoids the – quite arduous – problem how the applicable law shall be identified.  And, more broadly, it demonstrates its indifference to the mere distinction between public and private law issues, by stating that the characterisation of the illegality of the said contents, at the origin of the orders, is based on the applicable law regardless of “the precise nature or subject matter … of the law in question” (Recital 12 in fine DSA).

The same pattern reoccurs with regard to the intermediaries’ obligation to inform the authorities about individual recipients of their services (Article 10(1) DSA). The DSA simply assumes that orders requiring such information will be issued “on the basis of the applicable Union law or national law in compliance with Union law”, without detailing which national law actually is governing.

At the bottom of this method is the assumption that Union law or the national law will identify itself as applicable. Thereby, legal unilateralism is not only embraced, but also reinforced because orders based on unilateralist Union law or national law are strengthened. There are little limits the Act poses on national authorities, except that the territorial scope of their orders must be in compliance with Union law, including the EU Charter of Fundamental Rights, and – “where relevant” – general principles of international law and the principle of proportionality (see Article 9(2)(b) DSA). Interestingly, Recital 36 makes the (exceptional) extraterritoriality of the orders mainly conditional upon the EU legal basis of the illegality of the content, or requires “the interests of international comity” to be taken into account.

The problem with such unilateralism “set in stone” is that it does not overcome conflicts of laws, but exacerbates them. The law of the Member State having the strictest rules with the widest scope of application will be given preference over those who take a more liberal, balanced or nuanced approach.

Additionally, this ‘regulatory competition’ effectively suspends the country-of-origin principle laid down in Article 3(1) e-commerce Directive, which gives exclusive competence to the Member State in which the service provider addressed is established (see Recital 38 DSA). The orders regarding illegal content can be issued by the authorities of any Member State. This can be justified by Article 3(4), though, which provides a public policy exception.

The DSA’s Reason for Indifference to PIL

The reason why this road was taken is, quite obviously, the difficulties to overcome the entrenched divergences between national laws with overlapping scope. For this reason, the EU legislator decided to pass over this problem and place its rules on a different level. Conflicts of laws will be managed, not solved. This is in line with the “procedure over substance” philosophy of the Act, which has been criticised by others.

True, the illegality of internet content is often patently obvious, making the search for the applicable law a redundant exercise. Child pornography, hate speech, details of crimes or private photos do not justify long legal analysis. The DSA calls this “manifestly illegal content” and allows particularly strict measures in their regard, such as the suspension of services to their senders (Article 23(1) DSA). Still, the issue of legality or illegality may not always be so obvious, for instance when it comes to copyright infringements, the offering of accommodation services or the sale of live animals (examples taken from Recital 12), which is regulated quite differently in the Member States, not to speak of betting and gaming or the clash between privacy rights and free speech/freedom of the press that is resolved differently in different countries.

The Limits of Conflicts of Laws

In these instances, and in many others, it would have been preferable to have clear-cut rules that allow to identify the applicable rules. However, and from a more operational perspective, common substantive rules, rather than bilateral conflict-of-laws rules, should have been adopted where Union law is silent on what is illegal content. This would help to preserve individual freedom and to avoid contradicting orders between different Member States. In the absence of a political agreement between Member States on this question, the DSA opts instead for cooperation between regulators, especially the “Digital Services Coordinators” of the various Member State. However, without any clear guidance on whose laws governs, they may lack the means to solve these disputes in a matter that is legally certain, foreseeable and compatible with fundamental rights.

Moreover, the European digital environment will remain fragmented and there may be a risk that “illegal content havens” emerge (in the same way as tax havens in corporate matters). On the one hand, it can be expected that non-EU-based online platforms will choose a legal representative established in a Member State (Article 13 DSA) that is liberal in matters such as freedom of expression and privacy issues. On the other hand, one can imagine these platforms to strategically and systematically invoke their European “law of origin” (i.e. that of the Member State of establishment of their legal representative) in application of the internal market clause of the e-commerce Directive in the event of a civil liability action brought against them. Eventually, it will be for the national court of the Member States to navigate within this regulatory maze, with the sole help of the CJEU.

We guess national judges would rather favour their own law. Indeed, the law of the forum has several reasons to apply here, i.e. as the law governing the illegality of the content, the law of the place where the damages occurred and, more broadly, the law of the place of “use” of the content. This will reinforce the unilateralist tendencies that characterises the whole Act.

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