ERU, Alm.del - 2019-20 - Bilag 406: EMs orienteringsnotat samt høringssvar vedr. Kommissionens høring om Digital Service Act, fra erhvervsministeren

Erhvervsudvalget 2019-20
ERU Alm.del Bilag 406
Offentligt

The Danish Government’s response to the public consultation on

the Digital Services Act

General Comments

The Danish Government looks forward to the Commission’s upcoming

Digital Services Act (DSA). The EU needs to modernise the legal frame-

work for digital services and hence the Danish government supports this

ambition.

The Danish Government notes how especially the rise of digital platforms

have created new and unforeseen challenges that need to be addressed. Dig-

ital platforms serve important functions as gateways to information and fa-

cilitators of communication, why the largest platforms have become the

equivalent of public spaces. It is hence highly problematic that these private

companies effectively decide how freedom of expression and information

can be exercised on their platforms. European citizens experience their fun-

damental rights infringed when their content is removed, or their accounts

are blocked with no democratic safeguards or transparency/without expla-

nation or due process. At the same time, the platforms’ efforts are not prov-

ing adequate in the removal of illegal content, which is distributed with

speed and efficacy on the platforms. In effect, citizens are increasingly ex-

posed to terrorist content, appeals to violence, and the sharing of child por-

nography. On the platforms, consumers moreover risk inadvertently pur-

chasing illegal and dangerous products and are increasingly exposed to un-

lawful and misleading marketing. For the individual citizen it can be a

struggle to have illegal content removed when facing a large platform that

does not respond to their complaints. This has especially proven an obstacle

for victims who have had their intimate pictures disseminated widely on

platforms without their consent. It is the experience that some platforms

shed their responsibilities because they are not liable for content generated

by others. Finally, platforms can position themselves in such a way that

existing laws and regulations do not effectively apply to them and they go

virtually unregulated. The Danish Government hence finds that there is a

pressing need to establish a new framework with clear requirements for

digital platforms’ liability and responsibilities.

The criteria for success is a more responsible digital economy, where dig-

ital service providers take up greater responsibility in order to mitigate risks

deriving from their services, and at the same time safeguard fundamental

rights and setting high standards as regards the rebooting of our digital

economy.

In the following, we have listed our main points to the public consultation

on the DSA. These are elaborated in the attached annex.

8. September 2020

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The DSA should be a regulation to ensure effective and uniform

application

The DSA should ensure a true Single Market absent of regulatory fragmen-

tation and with a level playing field based on uniform application, imple-

mentation and enforcement. Thus, the DSA should be tabled as a regula-

tion.

Preserve the core principles of the e-commerce Directive in a

modernized form

The new legislative framework should foster a responsible platform econ-

omy by building on the core principles of the e-commerce Directive. In

order to form a fairer platform economy, clear criteria and standards for the

handling of content should be established building on the principle of

origin. The prohibition to impose general monitoring obligations and the

limited intermediary liability should be preserved in its core, but in a mod-

ernized form establishing greater responsibilities for digital platforms.



New and efficient tools to remove illegal content

It is becoming disappointingly evident, that even though many digital ser-

vice providers are taking steps to combat illegal content, further efforts are

needed. Therefore, the DSA should introduce new tools to tackle the wide

range of challenges related to online dissemination of illegal content to the

detriment of EU citizens, consumers, and businesses.



Illegal and harmful content should not be equated

In addressing the spread of harmful content online, it is important to em-

phasize that harmful content should never be equated with illegal content.

Addressing harmful content in the same manner as illegal content may have

detrimental repercussions for fundamental rights. Accordingly, measures

introduced in the DSA to counter online harm should solely focus on

illegal

content.

Updating the liability regime by introducing a ‘duty of care’ re-

quirement

There is an urgent need for digital service providers to live up to their re-

sponsibility in order to create a more fair and safe digital economy. There-

fore, the existing liability regime should be modernised. Specifically, an

incentive for digital service providers to proactively combat illegal content

is needed.

A ‘duty of care’ requirement should be introduced in order to

ensure that certain types of illegal activities are detected and prevented. In

this way, digital platforms would only be covered by the liability exemption

as long as they are taking measures that could reasonably be expected to

proactively detect and remove illegal content on their services and

collaborate with governments in a transparent manner.



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Fast removal of illegal content in a harmonised notice and take-

down procedure

The new liability framework for digital platforms should be accompanied

by a new set of responsibilities to ensure the fast and transparent removal

of illegal content upon notification as well as to prevent infringements of

fundamental rights. Hence, the DSA should establish a framework for no-

tice and take-down with a clearly defined procedure, safeguards and time-

line for acting on notifications on illegal content and ensure uniform pro-

cedures in all Member States.



Speedier removal of high impact content

While it is necessary to grant digital platforms time to assess the legality of

content, some user-generated content has a very high impact and may pose

a greater threat to society or significant damage to the individual. There-

fore, it would be prudent to have two sets of timelines with a shorter

timeframe for such high impact content.

Combatting non-compliant products from third countries by

introducing “Know-Your-Business-partner”-principle

Third-country

digital platforms should comply with the same “duty-of-

care” and notice-and-action

requirements set out in the DSA. This entails

that both European and third-country platforms should be expected to know

their business partner in order to avoid consumers to unknowingly buy dan-

gerous products, cosmetics containing dangerous chemicals or phone

chargers that set on fire.

Effective enforcement mechanism to protect European Citizens

and consumers and ensure a level playing field

In order to ensure effective and consistent enforcement of the new frame-

work provided by the DSA, a new enforcement cooperation mechanism

between authorities in Member States should be put in place. The mecha-

nism should establish clear procedures for the cooperation between the rel-

evant national authorities on concrete cases of non-compliance with the

regulation. A special procedure should be established, whereby the Com-

mission is given a central role in coordinating the investigation of and ac-

tions against digital services, where citizens, consumers or businesses from

several Member States are affected.



Platforms as gatekeepers

We refer to the Danish Government response to the IIA on gatekeeper plat-

forms from June 2020.



Specific remarks to the different elements in Digital Services Act can be

found in the attached document “Annex:

Specific comments from the Dan-

ish Government’s on the public consultation on the Digital Services Act”.

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Annex: Specific comments from the Danish Government on the public

consultation on the Digital Services Act

1. A Strong Single Market for Digital Services

The overarching aim of the Digital Services Act (DSA) must be to preserve

and strengthen the Single Market for digital services and ensure that Euro-

pean companies, consumers, and society can continue to benefit from the

opportunities given by digital services. A new framework for digital ser-

vices should establish clear and cohesive rules that provide legal certainty,

promote the development and uptake of new technologies and business

models, and support businesses’ opportunities to operate and scale across

borders. The DSA should ensure a true Single Market absent of regulatory

fragmentation and with a level playing field based on uniform and effective

application, implementation and enforcement, while at the same time safe-

guarding fundamental rights.

The e-commerce Directive established the framework conditions for digital

innovations to emerge, ensured the freedom of establishment and the free-

dom to provide digital services across the Union. The core principles on

intermediary liability exemption and country of origin as well as the prohi-

bition to impose a general obligation to monitor content have further been

instrumental in the development of a strong European platform economy.

1.1. Modernising the framework to address new challenges

Since the e-commerce Directive was introduced, a wide range of new chal-

lenges have developed. Significant challenges related to the online dissem-

ination of illegal content are to the detriment of European citizens, consum-

ers, and businesses. Citizens are for instance exposed to terrorist content,

appeals to violence, and the sharing of child pornography, and citizens risk

having their intimate material shared widely without their consent. Con-

sumers risk inadvertently purchasing illegal and dangerous products and

are increasingly exposed to unlawful and misleading marketing. Businesses

that comply with Union law face an unlevel playing field, when businesses

from third countries sell their non-compliant or copyright infringing prod-

ucts to European consumers via platforms. It is becoming disappointingly

evident, that even though many digital service providers are taking steps to

combat illegal content, further efforts are needed to foster a better and more

responsible platform economy.

Going forward, a new legislative framework should tackle the challenges

that have arisen over the years and which the e-commerce Directive does

not address. However, it is crucial that this is done by building on the foun-

dation of the core principles and conditions of the e-commerce Directive

that have been essential in establishing the Digital Single Market. When

addressing new challenges, we should be careful not to establish new bar-

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riers in the Single Market. This would have disproportionate impact on Eu-

ropean SMEs and start-ups. It is therefore essential to preserve the country

of origin principle, as it both enables digital services to operate across bor-

ders and enables European SME’s to reach consumers across the Single

Market in a cost-efficient way. Further, the intermediary liability exemp-

tion and the prohibition to impose a general obligation to monitor content

that have been instrumental in creating a European platform economy must

be preserved, but in a modernised form.

1.2. Table DSA as a regulation to ensure uniform application

Some of the new challenges have been addressed at both Member State and

European level

. A disadvantage of this is that digital services providers

and internet intermediaries are increasingly being met with diverging legal

and procedural requirements. Altogether, such legal fragmentation causes

legal uncertainty, administrative burdens, and unnecessary barriers to trade

within the Single Market. Rather than fostering a competitive environment,

the fragmented legal landscape favours larger, well-established firms who

can afford the compliance costs. Therefore, the DSA must have a main aim

of establishing a regulatory framework that fosters an effective Single Mar-

ket based on clear and harmonised rules that can overcome the complexity

and legal fragmentation of the current framework. With a view to accom-

plishing these goals, the Danish Government urges the Commission to pro-

pose a Union Regulation that ensures harmonised and effective application.

2. Updating definition on intermediaries to reflect new types of digital

services

In line with the e-commerce Directive, the DSA should continue to regulate

all digital services, from hosting services and DNS (Domain Name Sys-

tems) registrators to e-commerce platforms. Therefore, the Danish Govern-

ment finds it absolutely necessary for the Commission to clarify the legal

status of digital platforms by determining what requirements a service must

meet in order to be considered an "intermediary service provider" within

the remit of the DSA. Further, the framework must still distinguish between

two types of intermediaries, the passive ones, such as hosting services, and

the more active ones interacting with third party content allowing for dif-

ferent responsibilities and liabilities.

The landscape of intermediary service providers has evolved and grown

substantially since the adoption of the e-commerce Directive. Notably, the

developments include the rise of digital platforms enabling user-generated

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of

certain provisions laid down by law, regulation or administrative action in Member States concerning the provi-

sion of audiovisual media services (Audiovisual Media Services Directive)

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and

related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the

sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework De-

cision 2004/68/JHA

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content in the public space, which have come to play an increasingly

important role in society. Digital platforms can take many forms and can

be based on a number of different business models that are continually

evolving. The collaborative economy has patricularly brought about a new

range of digital platforms that allow people to connect various goods and

services, e.g. with respect to real estate, transport, labour, vacation and

money lending. Depending on their particular configuration, some of these

services may be considered intermediary services while others may not.

2.1. Necessary to provide clarity on what constitutes an intermediary

In the case of digital platforms, deciding what constitutes an intermediary

service provider is rarely straightforward, as some platforms’ business

models balance on the line between being an optimising intermediary or a

traditional service provider, an online seller or a mixture thereof. The

assessment is further complicated in cases where the platform besides from

hosting, performs additional activities that do not consist of hosting.

Finally, intermediary service providers may be able to position themselves

in such a way that existing laws and regulations in the underlying market

do not clearly or effectively apply to them. In such situations of regulatory

arbitrage, new intermediaries may gain an advantage over regulated entities

operating in the same markets.

Altogether, due the lack of specificity of the intermediary service provider

definition it is not always clear whether the new intermediary functions in

the online environment, such as digital platforms, fall within the scope of

the term. Where a service falls outside that definition, the service in ques-

tion does not benefit from safe harbours in the e-commerce Directive and

the question of liability will be settled under relevant national law. Thus, a

regulatory gap exists where it is unclear whether a service is covered by the

liability exemption and hence, under which legal regime it operates.

In order for the DSA to effectively regulate digital services, it must first

and foremost provide clarity on what kind of services will be covered by

the different provisions and requirements. A central task will be to provide

clarity on what constitutes an "intermediary service povider" within the re-

mit of the DSA and thus to clarify the legal status of digital platforms, de-

pendent on their specific configuration. Ideally, the DSA should offer legal

certainty both for existing services as well as for future services. Conse-

quently, rather than a typology determining which existing types of ser-

vices will be covered by the term “intermediary service provider”, the DSA

should introduce a framework for determining whether a service can be

considered an intermediary. The framework should establish what require-

ments a service must meet in order to be covered, or which criteria will

exclude the service from the scope. These criteria could take inspiration

from relevant case law, and accordingly they could be based on whether a

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service is involved in price setting, ranking, purchasing and reselling, draft-

ing of commercial messaging or optimising the presentation of sales.

2.2. Maintaining two types of

“intermediary service providers”,

allowing

for different liabilities and responsibilities

A second issue arises with regard to the variation of those services that do

fall within the scope of an intermediary service provider. Under the existing

regime, the determination of whether an intermediary service provider can

actually benefit from the liability exemption is dependent upon whether the

role of the intermediary is considered to be “passive” or “active”, and hence

whether or not the intermediary has knowledge or control over the infor-

mation which it stores or transmits. An intermediary that is considered to

be active will, unlike the “passive” intermediary, loose privilege of the safe

harbour and its role and responsibilities will be assessed according to the

national intermediary liability regimes. This conceptual distinction works

as intended

to separate the “passive” conduit and caching services from

other types of services.

There are still many services that clearly fulfils the role of a “passive” in-

termediary, and who ought not be held liable for user-generated content.

However, some of

today’s digital services do not fall into the category of a

passive intermediator, whose activities are merely of technical character,

neither can they be claimed to have actual knowledge or control of all the

content on their services. These intermediary services are most commonly

digital platforms. Whether they are exempted from liability or retain full

liability of the user-generated content, it would not correspond to the role

they play in the value-chain, such as content moderation. Hence, distin-

guishing between what kind of intermediaries should either not be liable or

maintain full liability for user-generated content on the basis of the con-

cepts “passive” and “active” alone is no longer sufficient.

The DSA should distinguish between two types of intermediaries;

the “con-

tent facilitators”

whose activities are solely passive in nature, and the “con-

tent intermediaries”

that take on a more active role, but cannot be consid-

ered as content providers, traditional service providers or other services that

fall outside the scope of the new DSA intermediary framework

. This dis-

tinction shall allow for assigning two different liability exemptions to the

“content facilitators” and the “content intermediaries” with a view to en-

The term “content facilitator” is not an existing definition in Union-law

but is applied here for clarity pur-

poses. Services such as network operators, cloud infrastructure services, DNS registrators could be defined as

“content facilitator”.

The term “content intermediary” is not an existing definition in Union-law

but is applied here for clarity pur-

poses.

Inspiration could be taken from sector specific regulation, such as the revised Audiovisual Media Services

Directive (AVMSD), which similarly distinguishes between information society services that are passive in

nature and those that take on a more active role (video sharing platform services).

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suring that their liabilities and responsibilities will correspond to their re-

spective roles in the value chain. The DSA should provide clarity and clear

criteria on whether a service would be considered as a passive “content

facilitator” or the more active “content intermediary”.

3. Updating

Intermediary Liability for active “content intermediaries”

There is an urgent need to modernise the existing liability regime in order

to align the regulatory framework with new market and technological de-

velopments and to create an incentive for digital service providers to pro-

actively combat illegal content. The Danish Government finds that the lia-

bility should reflect the role a digital service provider plays in the value

chain, and that the responsibility to act should correspond to the kind of

measures the service has at its disposal. The existing framework of “either

full liability or no liability at all” is no longer working and do not corre-

spond to the digital services knowledge or moderation of content on the

platforms. A more nuanced and modern approach should be taken.

The online dissemination of illegal content, which is especially prevalent

on digital platforms, has become a growing challenge, which needs to be

tackled. This will require both efficient legislation that establishes clear

rules on liability, and an industry that assumes responsibility and makes a

solid effort to detect and remove illegal content from their services.

The liability exemption in the e-commerce directive has been vital for the

Digital Single Market, as it has enabled the very operation of several valu-

able digital services by exempting them from facing the threat of potential

liability for third party content when performing the functions of mere con-

duit, caching, hosting and storing of information. In the current online en-

vironment, there are still clear-cut

cases of “passive” content facilitators

that have a merely technical role, as their service is constricted to the trans-

mission of information, and who further have limited measures at their dis-

posal for removing

access to illegal content online. These “content facili-

tators” should continue to be protected under the existing liability frame-

work as well as by the prohibition to impose a general obligation to monitor

content. Such services include, but are not limited to internet service pro-

viders, network operators, cloud infrastructure services and DNS Regis-

trars.

However, some digital services take on a more active role in the value chain

as regards i.e. content moderation; hence they may be considered as “con-

tent intermediaries”. The content intermediaries are most commonly online

intermediaries who facilitate the sharing of content and provide services

that connect different users in their respective ends of the value-chain, such

as digital platforms. These content intermediaries should not automatically

be fully liable for content generated by third parties. On the other hand,

their liability ought to correspond to the more active role they play in the

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value chain. Moreover, unlike the more passive “content facilitators”, the

digital platforms have the ability to take proportionate and pro-active

measures to combat illegal content on their services but lack the legal in-

centive to do so. This is because the distinction made between active and

passive actors entails a disincentive to act pro-actively to tackle illegal con-

tent. Consequently, digital services may avoid taking steps to pro-actively

identify and remove illegal content for fear of becoming liable for all con-

tent on their services.

It has become clear that the dissemination of illegal content on digital plat-

forms is a persistent challenge, and a reactive measure of notice-and-action

requirements, whether in the existing form or an updated harmonised one,

will not suffice. Awaiting notification before takedown results in a consid-

erable delay, allowing the illegal content to be dispersed quickly and

widely, which may have severe ramifications. It is important to the Danish

Government that the digital platforms take on a more responsible and pro-

active role in detecting and removing illegal content from their services and

that they become a safer space for European citizens. To this end, the DSA

should introduce a new liability framework for “content intermediaries”

that do not fit the category of a “passive” actor, most notably the digital

platforms.

3.1. Introducing a ‘duty of care’ requirement for digital platforms

The DSA should link the liability for digital platforms with a requirement

to take pro-active measures to remove illegal content quickly and

efficiently. With this approach, digital platforms would still not be liable

for the illegal content as such but would face procedural requirements

regarding their handling of illegal content on their services. At the same

time it is important to ensure framework conditions that underpin a vibrant

platform-economy in the EU and which enables the growth of start-ups

and small platforms, why the threat of full liability must not make the

business model unsustainable for new entrants. Further, it is essential that

the framework does not introduce rigid standards, but allows for innovation

and enables the platforms to develop new and more effective solutions to

identifying and removing illegal content.

This could be achieved by introducing a ‘duty of care’ requirement inspired

by recital 48 of the e-commerce Directive, which specifies the option of

requiring service providers to apply duties of care, which can be reasonably

expected from them in order to detect and prevent certain types of illegal

activities. By introducing such a requirement, digital services would only

be covered by the liability exemption as long as they are taking measures

that could reasonably be expected from them to proactively identify and

remove illegal content that has been uploaded to their services. In other

words, the liability exemption would pose an incentive to act proactively

as opposed to the disincentive inherent in the current liability exemption. It

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should, however, continue to be forbidden to impose a general obligation

to monitor content, and digital service providers should not be obliged to

screen content before it is uploaded.

What constitutes sufficient measures taken by the platforms would depend

on the size, ability, and business model of the digital platform in question,

but should not be too rigidly specified by the regulation. For instance, all

the largest platforms could be expected to ensure that content that once has

been identified as illegal and removed, is quickly detected and removed

again if a user re-uploads it. Social media platforms could be expected to

utilise algorithmic systems to detect and remove illegal content, while

online marketplaces, dependendent on size, should be expected to consult

information on recalled and dangerous products on RAPEX and from

enforcement authorities, and remove identified listings offering unsafe

products.

The ‘duty of care’ principle would be futureproof as the measures that

would be expected from the different kinds of platforms could change over

time as markets and technologies develops. The platforms will be expected

to continuously learn from their efforts and invest in new and improved

solutions in order to keep up with the efforts of other platforms of similar

size, ability and business model. Consequently, the demand for

technological solutions to detect and remove illegal content will create a

new market. Over time, a number of businesses will be offering effective

technological solutions at a price affordable even to the smaller platforms.

Altogether, the ‘duty of care’ principle should result in a continuously

improving effort in the fight against illegal content for all digital platforms,

regardless of size and type.

The platforms should prove that they live up to the ‘duty of care’

requirements in order to be covered by the liability exemption, why they

should be required to regularly publish standardised reports on the actions

taken as well as on the results. This will make it possible for the authorities

to enforce the regulation, including assessing and commenting on the

platforms’ efforts. Comparison of the reports will also allow the individual

platforms to benchmark their performance to that of other platforms with a

view to improving their efforts. Finally, publication of the reports will give

the

public a better understanding of the platforms’ content moderation

practices.

When introducing such a requirement in the DSA, it is important to strike

the right balance between flexible, functional requirements that are future-

proof on the one hand, while on the other ensures legal clarity and foresee-

ability. The legal text should provide legal certainty while not being too

prescriptive. One way forward could be to introduce the general "duty of

care" requirement in the legal text and provide examples in the recitals as

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well as having the Commission in cooperation with Member State author-

ities provide guidance to businesses. It is paramount that the guidance en-

sures proportionality and ensures that ensure that start-ups will still be able

to scale-up.

3.2

Introducing “know-your-business-partner” principle for online market

places

When consumers buy products on digital platforms, many businesses may

be involved in a sale and sometimes there are insufficient information about

the identity, address and contact information of the businesses. Consumers

often find it difficult to understand who is the contracting party and thus to

whom the consumer may complain over non-compliant products. In

addition, authorities have difficulties enforcing the rules if it is not clear

which company is behind the sale.

Online marketplaces should therefore make an effort to verify the

information and identity of its business partners. In this regard, the DSA

should introduce the principle of “know-your-business-partner”. Further,

an effort should be made to verify that the information the business partners

provide is up to date and to ensure that non-compliant sellers and

counterfeiters are not allowed to continuously register as new sellers on the

platform after once having been identified as fraudulent. In this regard, it

should be noted, that harm to a seller on an e-commerce platform caused

by the removal of a legal product is regulated in the Platform-to-Business

regulation.

3.3. Adressing Legal Fragmentation of the Liability Exemption in Union

law

The EU have since the e-commerce Directive sought to adress challenges

related to illegal content online through sectorspecific regulation.

Consequenlty, the copyright Directive, the audiovisual media services

Directive, and the the Directive on combating the sexual abuse and sexual

ex-ploitation of children and child pornography have introduced several

exemptions to the horizontal liability framework of the e-commerce

Directive and introduced diverging requirements on digital pltaforms with

regards to the removal of illegal content.

The adoption of the Commission’s

proposal

for a regulation on preventing the dissemination of terrorist con-

tent online is expected to add further to this list. And with the possible in-

troduction of new liability and responsibility requirements for digital ser-

vices in the DSA, there is a risk of adding further to the existing legal un-

certainty and fragmentation. Hence, it is important for the Danish Govern-

ment that the DSA rather than adding to the problem becomes the solution.

Ideally, the new articles on liability and responsibility requirements in the

Proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of

terrorist content online

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DSA should replace similar requirements/specific elements of above legis-

lation with a view to ensuring horizontal rules. For instance, the Danish

Government’s

suggested framework for digital platforms’ liability for and

responsibility to act would address the same challenges regarding digital

platforms’ liability for illegal content addressed in the sector-specific

leg-

islation.

4. Responsibility to Act

–

A harmonised procedure for notice and take-

down

Today, digital services are required to take immediate steps to remove ille-

gal content, once they have been made aware of it. Unfortunately, the ex-

perience is that digital platforms can be slow to remove content they have

been made aware of. Further, platforms may be reluctant to remove flagged

content when they are unsure of its illegality. This is highly problematic,

as fast removal is essential in order to limit the wide dissemination that

occurs at a fast pace and that can have damaging consequences for users,

for companies and for society.

At the same time, the lack of appropriate and effective safeguards to pre-

vent the removal of legal content may result in infringements on fundamen-

tal rights such as the freedom of speech or the right to information. Hence,

it is necessary to establish a framework for notice and action with a clearly

defined procedure, safeguards and timeline for acting on notifications on

illegal content and ensure uniform procedures in all Member States. The

framework should include both effective complaint- and redress mecha-

nisms, standardized transparency reporting and sanctions.

4.1. Platforms should act upon notice within clearly defined timeframes

and following a precautionary principle to handle high impact content

First, it is important that digital platforms are required to act upon a notice

within clearly defined timeframes. While it is necessary to grant the plat-

forms time to assess the legality of content, some user-generated content

has a very high impact and may pose a greater threat to society, such as the

rapid dissemination of terrorist content, or may cause significant damage

to the individual, such as the non-consensual sharing of intimate content.

Therefore, stricter timelines for high impact content should be imposed.

This could for instance be done by introducing a precautionary principle,

where high impact content should be removed first, and assessed after-

wards. The platforms would only be liable for taking down legal content in

this category, if they have not assessed and reposted the content within an

extended timeframe. A longer timeframe should be set for the other cate-

gory of illegal content, where the potential negative impact is not as high.

There should be clear provisions in the DSA on what type of illegal content

falls within the scope of each timeframe. In addition, the regulation should

provide for the possibility to change the timeframes to act, if and when new

developments enable quicker responses.

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4.2. Platforms should have an easily accessible user complaint system

Second, platforms must be required to have a user-friendly and easily ac-

cessible complaint mechanism, as well as a transparent process for acting

upon complaints. Clear guidelines should set the terms for what may con-

stitute an easily accessible and user-friendly complaint mechanism. For

content that is publicly available, it should be possible to notify the plat-

form without having a user account. Due process safeguards must be put in

place to ensure that users’ fundamental rights

are not encroached hence it

is essential that users can challenge "over-removals" through an effective

redress mechanism. In this regard, it is further important that the notice and

action framework does not become a tool for harassment, why appropriate

safeguards must be put in place. As users’ fundamental rights can also be

encroached on the basis of the platforms’ proactive measures, it should be

possible for the users to challenge the removal of content that did not orig-

inate from a notification.

4.3. Platforms should publish transparency reports

Third, platforms should be required to regularly publish transparency re-

ports about the effectiveness of their moderation and removal efforts as

well as on the lawful content that is mistakenly removed

. It is important

that the reports reflect both content that has been removed as part of the

reactive notice and takedown process and content that has been removed as

part of the platforms’ proactive measures. In this regard, a section of the

transparency report should be dedicated to information on content that has

been detected and removed by algorithmic systems. The reports should also

include assessments of the content that the platforms are not able to remove

effectively, such as assessments of the illegal content likely remaining on

their platforms. If the platform has community guidelines or similar, which

entails the removal of content that is not illegal, the transparency report

should describe these guidelines and shed light on content that has been

removed on the basis of these guidelines. Standards should be established,

in order to ensure consistent reporting with comparable information, which

will allow for better assessment of the overall impact of content modera-

tion.

4.4. Sanctions should enforce the notice and take-down framework

Finally, sanctions should be imposed in order to enforce the notice and

take-down framework. Fines should be imposed for failure to put the afore-

mentioned procedures in place or for systematically failing to remove no-

tified illegal content. With a view to ensuring that the threat of sanctions

do not lead to unnecessary or excessive censorship, platforms should addi-

tionally be fined for systematically removing legal content.

A similar requirement could be considered for disinformation and coordinated inauthentic behavior following

the code of practice review.

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For the requirements on platforms responsibility to act, a proportionality

principle should be considered with a view to exempt smaller platforms.

5. Addressing the Challenge of Non-Compliant Products from third

countries

There are growing problems stemming from third country companies that

sell illegal products to European consumers via digital platforms estab-

lished in the EU and in third countries. It is important that the DSA ad-

dresses this issue.

With the increasing cross border e-commerce and the emergence of digital

platforms, European consumers buy products from all over the world.

However, when consumers purchase products via digital platforms, it is not

the platform, but the seller, that is liable for the product and required to live

up to consumer protection rules. Hence, challenges arise when sellers from

third countries do not abide by Union-law, as it is difficult for enforcement

authorities to enforce the rules towards sellers in third countries

The digital platforms make the process of buying products from third coun-

tries just as simple and accessible for consumers as it is for them to buy

products from EU-based companies, why consumers often do not realize

when they are left unprotected as regards product safety and consumer pro-

tection rules. Consequently, consumers unknowingly buy and utilize prod-

ucts that do not live up to EU standards and requirements such as a lack of

correct labelling or user instructions on the product, dangerous toys, cos-

metics containing dangerous chemicals, or phone chargers that set on fire.

In addition, the EU consumer protection legislation on e.g. misleading mar-

keting, information on price, VAT, delivery costs may not be complied

with when sellers from third countries sell to EU-based consumers via plat-

forms. The result is a decrease in consumer welfare.

Furthermore, this leads to unfair competition for the European companies

complying with Union-law. European businesses incur high compliance

costs making sure their products are safe and live up to European standards,

just as they make sure to comply with other consumer protection legisla-

tion. Hence, businesses from third countries gain an unfair advantage, when

they via the platforms can sell non-compliant products directly to European

consumers at a lower price-point than European comparable products.

5.1. Introducing “duty of care” for all platforms directing services at the

EU”

The Danish Government finds that these challenges should be addressed in

the DSA by imposing the Regulation on all digital platforms that direct

their services at European consumers, regardless of whether they are estab-

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lished within the EU or not, as with the GDPR. Thereby, third country dig-

ital platforms shall comply with the same “duty of care“ and notice-and-

action requirements as EU digital platforms. This entails that both e-com-

merce platforms established in the EU and those established in third coun-

tries should be expected to “know your business partner” (see chapter 3.2.)

and take action if non-compliant sellers reappear. It would further include

the obligation for large e-commerce platforms to ensure that illegal prod-

ucts listed in RAPEX are identified and removed effectively as well as

making them liable if they do not remove illegal products or services when

notified.

6. Effective Enforcement to Protect European Citizens and Consumers

and Ensure a Level Playing Field

The Danish government supports initiatives in the Digital Services Act to

strengthen enforcement on digital platforms, which is essential to protect

citizens and consumers and to ensure a level playing field for the businesses

complying with the rules.

It is the experience that the provisions in the e-commerce Directive are not

always enforced properly or consistently, and that the enforcement on ser-

vices located in other Member States and operating cross borders can prove

challenging for Member State authorities in the existing framework.

6.1. Establishing an enforcement cooperation mechanism

In order to ensure effective and consistent enforcement of the new frame-

work provided by the DSA a new enforcement cooperation mechanism be-

tween authorities in Member States should be put in place. The mechanism

should establish clear procedures for the cooperation between the relevant

national authorities on concrete cases of non-compliance with the regula-

tion. The competent authorities in the country of origin should be required

to respond to inquiries from other Member State authorities within fixed

time limits. Each Member State should point out a liaison office that will

work as a single point of contact on matters related to the DSA. The DSA

should ensure that the necessary information and evidence legally can be

exchanged between competent authorities with a view to ensure that non-

compliant services can be held accountable.

For infringement cases that affect citizens, consumers or businesses in sev-

eral Member States, it may prove difficult for national authorities to pursue

enforcement steps, and a more coordinated approach may be called for.

Hence, a special procedure should be established, whereby the Commission

is given a central role in coordinating the investigation of and actions

against the digital services that operate across borders. The special proce-

dure should enable a legal case to be made against a service based on its

infringements of Union law incurred in various Member States. Altogether,

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the strengthened cooperation and coordination between Member State Au-

thorities and the Commission should lead to a more consistent application

and enforcement of the horizontal framework, also ensuring a level playing

field for businesses.

It is important that the new enforcement mechanism complement coopera-

tion between member states’ enforcement authorities in other areas, such

as the CPC-network.

6.2. The exemptions to the country of origin principle should be clarified

Looking at the existing framework, it is the experience that Member States

have different interpretations of the exemptions to the country of origin

principle, which is a hindrance to the consistent enforcement across the

Single Market. The DSA provides an opportunity to clarify and update the

exemptions to the principle, for instance with a view to limit the exemp-

tions to areas that are harmonised in Union law. Taking into account that

the Union consumer protection legislation to a great extent has been har-

monized since the introduction of the e-commerce Directive, the exemption

regarding consumer protection should be updated, so it becomes clear when

the principle of origin applies or when consumer authorities in the receiving

country may enforce Union-law. Consequently, the enforcement of Union-

law will be improved, and the enforcement practice of Member States will

become more consistent.

7. Cooperation Requirements Regarding Systemic Threats to Society

The largest digital platforms have a vast network of users, and consequently

the content posted on their services can rapidly reach millions of users

across the globe. Unfortunately, this unique interconnectedness provided

by the largest platforms can pose a systemic threat to society when the plat-

forms’ services fall subject to abuse. Examples are the glorification of ter-

rorist attacks, such as the terrorist attack in Christchurch, or attempts to

influence democratic elections, such as the Cambridge Analytica case. On

the other hand, the largest platforms’ extensive networks are uniquely po-

sitioned to serve as information channels to the wider public. During the

first months of the COVID-19 pandemic, the European Commission called

for the cooperation of platforms in fighting dis- and misinformation as well

as promoting content from official and verifiable sources, and the resulting

cooperation between platforms and European authorities had a substantial

effect. We should learn from these experiences and set up a legal frame-

work to ensure that we are prepared for the next crisis.

Hence, the largest platforms should be subject to stricter requirements with

a view to counter systemic threats to society. Such obligations ought to

include a requirement of enhanced cooperation with authorities and the ob-

ligation to prioritise the dedication of their efforts on content moderation

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to systemic threats when necessary. The largest digital platforms have al-

ready shown themselves to be capable of such efforts, as exemplified by

the cooperation between select digital platforms and European authorities

in combatting disinformation in relation to COVID-19. Additionally, it is

imperative for the enforcement of criminal law that authorities can gain

access to information from the platforms. Hence, the largest platforms

should be required to share information with competent authorities that

could help countering these systemic threats or lead to apprehending the

perpetrators behind them.

8. Distinguishing between illegal content and harmful content

Challenges related to digital platforms are not limited to the dissemination

of illegal content but also concern the spread of harmful content. Harmful

content can take many forms verging from comments that may for some

individuals be considered offensive to legal health-related misinformation

with severe ramifications, as well as strategic disinformation campaigns

aimed at undermining trust in our democratic institutions. The COVID-19

pandemic spurred an unprecedented amount of misinformation about the

virus, which created confusion and distrust, undermined the public health

response and caused a number of individuals physical harm due to false

information on measures for protecting against or for curing the virus.

It is important to the Danish Government that the internet becomes a safer

space for European citizens, and accordingly there is an increasing need to

address the spread of harmful content online. However, it is important to

emphasize that harmful content should never be equated with illegal con-

tent, and accordingly an important distinction should be made between the

measures taken to address the two challenges.

Though the spread of harmful content can have serious ramifications, the

term covers content which for various reasons have not been forbidden by

law. What may be considered harmful content may differ not only from one

Member State to the other, but also between different cultures or even on

the individual level. Addressing harmful content in the same manner as il-

legal content may have detrimental repercussions for fundamental rights,

notably the freedom of speech, the freedom of information, the right to pri-

vacy and due process.

Accordingly, the Danish Government finds that the measures introduced in

the DSA to counter online harms should solely focus on illegal content. In

order to tackle the spread of harmful content while safeguarding fundamen-

tal rights, a different toolbox than regulation is needed with regards to re-

moval of content, whereas requirements to transparency and reporting with

regard to harmful content could be options going forward. The Danish Gov-

ernment welcomes addressing the challenge of harmful content in the Eu-

ropean Democracy Action Plan and as part of other initiatives.

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The Danish Government further looks forward to addressing other chal-

lenges brought on by the emergence of digital platforms in the European

Democracy Action Plan. One of which is how the public debate to a large

extent has moved online to the social media platforms. While the digital

platforms have contributed to broadening the democratic debate by giving

an online voice to citizens, we must also acknowledge that the

platforms’

community guidelines and the way they moderate content is effectively

shaping the course of the public debate. Accordingly, it is important to en-

sure that the digital platforms which effectively function as extensions of

the public space facilitate a democratic online debate in full respect of fun-

damental rights.

9. Decent working conditions for all platform economy workers

The platform economy can contribute to foster labour market participation

for people at the margins of the labour market, but the working conditions

for platform economy workers must not lead to a race to the bottom. Decent

working conditions should be ensured for all in the platform economy.

The main responsibility for ensuring decent working conditions should re-

main with the Member States, while the key EU focus should be on en-

forcement and exchange of best practices.

It is crucial that the social partners are involved in the dialogue and con-

tribute to identifying challenges and solutions on the EU-level as well as

the national level. It is vital that possible EU initiatives regarding platform

economy workers respect the role and competences of Member States and

the different labour market models, including those where social partners

are responsible for pay and working conditions.

The Danish Government finds that working conditions for platform econ-

omy workers have a broader labour market perspective and should not be

dealt with within the scope of the DSA. Further, a new "third" category in

addition to workers and self-employed should not be introduced. Instead,

possible EU initiatives regarding this question could be addressed sepa-

rately to bring sufficient attention to this highly important issue.

The Danish Government looks forward to contributing to the debate in EU

on how to ensure decent working conditions for all platform economy

workers and taking into account concerns in relation to fair competition.

10. Streamlining information requirements in the e-Commerce Directive

and other legislative acts

When evaluating the e-commerce Directive, it is important the Commission

also focuses on consumer issues related to the e-commerce Directive. One

of the initial purposes of the e-commerce directive was to promote cross

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border e-commerce by amongst others granting consumers information of

traders, since harmonized consumer legislation was limited at the time of

the agreement of the e-commerce Directive.

Several information requirements exist in the current regulation related to

e-commerce. The requirements are rarely identical but cover the same in

terms of content. Thus, the information requirements in the e-commerce

Directive should be aligned with the similar information requirements in

the Services Directive and the Consumer Rights Directive. By unifying the

wording of the information requirements, the consumers will more easily

identify the relevant information, and the legal clarity will remove unnec-

essary burdens for businesses.

11. Clarified rules on commercial communication targeted children and

young adults

With the emergence of social media platforms and the increasing number

of influencers, challenges have arisen related to the marketing of products

and services. Especially children and young adults have difficulty recog-

nising when they are exposed to marketing on social media platforms and

from influencers. Studies

show that this group is less likely to have the

preconditions for interpreting the intentions and business models of mar-

keting on social media, why there may be cause for further protection of

consumers than the current framework provides. We invite the Commis-

sion to review Article 6 of the commerce Directive concerning commercial

communication, to assess whether the Article is still fit for purpose or

whether it should be extended or clarified in order to ensure better enforce-

ment of marketing targeted children and young adults.

The Danish Competition and Consumer Authority is currently working on

a behavioural analysis on this subject and will be happy to share the results

with the Commission when they are available by December 2020.

12. Online commercials

Advertising banners are widely used. However, the at times also function

as a channel that can be used by fraudulent websites to advertise directly

targeted European consumers. E.g. consumers are let to think that they buy

an authorised trademark product but in turn is a counterfeit good, most

probably from a third country. Today, it is very difficult for EU authorities

to take action against the seller. Further, digital services that has profited

See i.e.

B. Nardere, J. Matthes, F. Marquart & M. Mayrhofer (2018): “Childrens attitu-

dinal and behavioral reactions to product placements: investigating the role of placement

frequency, placement integration, and parental mediation”.

International Journal of Ad-

vertising.

S.C. Boerman & E.A. van Reijmersdal (2020): “attitudinal

and behavioral reactions to

product placements: investigating the role of placement frequency, placement integra-

tion, and parental mediation”.

Frontiers in Psychology.

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from the advertising also cannot be held liable. The Danish Government

encourages the Commission to analyse whether the DSA could address this

problem.