Cullen International has just published a new analysis of the preliminary positions of governments on the European Commission's proposed Digital Services Act (DSA) in 11 member states.

The analysis shows that member states generally support the proposal but have some common concerns. The provisions that are more sensitive and are expected to require more extensive discussions include:

• the practical functioning of the oversight system, and in particular rules on the cooperation between the designated Digital Services Coordinators, and on removal/information orders (including cross-border) by national judicial/administrative authorities;
• the interplay between the future regulation and existing sector-specific EU legislation. Germany in particular would like its national legislation on combatting hate speech and on the protection of minors to apply alongside the DSA;
• the scope of the proposal, in particular France, Italy, Sweden, Spain are critical of the exclusion of search engines from the current scope. France would like live-streaming to be included and France and Germany would like private messaging services to be in scope:
• the protection of fundamental rights, especially freedom of expression.  

Additional points for wider discussion are likely to be: the protection of trade secrets of service providers (Finland), measures to fight disinformation (Poland), the so-called Good Samaritan clause that aims to eliminate disincentives for voluntary own-initiative detection and removal activities by providers (Italy), powers of the Commission to update certain obligations (Spain).

The European Commission's proposal for a Digital Services Act  preserves the current liability exemption but introduces so-called due diligence obligations for providers of online intermediary services over information (i.e. activities, content and products) that is uploaded by their users and is illegal under EU or national laws. These obligations are graduated on the basis of the risk of exposure to illegal information, which is considered higher on online platforms such as social media and marketplaces.

It also introduces transparency requirements (including on advertising and the use of algorithms), provisions to counter the dissemination of harmful content (such as disinformation) on very large online platforms, and it gives designated Digital Services Coordinators (DSCs) in the country of establishment (in coordination with those of the countries of destination) far-reaching investigation and enforcement powers.

A first proposal for a negotiating mandate at Council is expected for the end of June 2021. Parliament is aiming to conclude its examination in December 2021. The DSA is expected to be adopted under the French presidency i.e. in the first half of 2022.

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