UK, EU Tread Potentially Conflicting Paths on Platform Regulation

A U.K. proposal for reining in tech companies could affect intermediary liability protections and set up a conflict with a similar measure moving through the EU legislative process, experts said. The draft Online Safety Bill (OSB) establishes a new regulatory regime to address content harmful to children and illegal online content. The EU Digital Services Act (DSA) seeks to boost user trust in online services by countering illegal content and by making platforms, especially very large ones, more accountable (see 2012150022). But unlike the OSB, the DSA builds on existing "safe harbor" rules for intermediaries. It also addresses only illegal content, while the U.K. measure gets into the murky area of harmful material.

Both bills are in flux as they undergo vetting by, respectively, a parliamentary joint select committee and various European Parliament committees and EU member governments.

The main difference between the proposals is that DSA "started on the premise to regulate how platforms ought to be dealing with illegal content," to a large extent leaving out the questions of how to deal with legal but otherwise harmful content, emailed Electronic Frontier Foundation International Policy Director Christoph Schmon. He cited a DSA explanatory memorandum that says stakeholders generally agree that "harmful" (yet not necessarily illegal) content shouldn't be defined in the act and shouldn't be subject to removal obligations because "this is a delicate area with severe implications for the protection of freedom of expression."

It's "the right decision," Schmon said: It's hard enough to harmonize rules on illegal content because what might be illegal in, say, Poland might not be in Germany. By contrast, the U.K. bill opts for regulating content that might not be illegal at all, "which will likely lead to removal of perfectly legitimate speech."

Another difference is that the OSB seeks to introduce a positive requirement for platforms to take down certain kinds of content, Schmon said. The DSA, by contrast, sticks to the provisions of the EU e-commerce directive, which doesn't have a duty of care for intermediaries that are mere conduits. The European Parliament, however, is also discussing that approach, he said.

The EU decision to retain the intermediary liability defenses and protection against general monitoring obligations in the e-commerce directive likely means the DSA won't require platforms proactively to identify illegal content as long as they take it down promptly once they become aware of it, emailed Hogan Lovells public law attorney Charles Brasted Tuesday. As drafted, however, the OSB, while more limited in scope, appears to go further in some areas, such as the requirement to minimize the presence of some types of illegal content.

Business will need to understand and manage this and other significant differences emerging between the DSA and OSB when they engage with the proposals and, eventually, implement compliance processes, Brasted said. "Businesses providing online services internationally will need to decide whether to adopt a one-size-fits-all approach to compliance across the U.K. and EU to reduce complexity or track more closely the differing requirements."

Meanwhile, the European Commission intends to go beyond the DSA and its companion, the Digital Markets Act, to clean up online political advertising. Speaking Tuesday at the Web Summit in Lisbon, Values and Transparency Commissioner Vera Jourova said she intends to introduce legislation in a few weeks to ensure that the sensitive data people share with friends on social media isn't used to target them for political purposes and that there's more transparency about targeting and amplification techniques. The proposal will cover social media platforms, the ad tech industry and others, her emailed talking points said.