Notice & take action procedure in the proposal for the Digital Services Act

The regulation on a single digital services market is certainly the most important legislative development affecting the Internet in the last 20 years. One of the main expectations with respect to this initiative was complete regulation of the procedure for reporting and taking down unlawful content in a manner ensuring that a balance is maintained between the rights of users (primarily freedom of speech) and protection by internet intermediaries of fundamental interests and values such as personality rights or intellectual property. While these expectations have been met to a certain extent, the first objections have been raised regarding the new notice procedure, pointing out some minor drawbacks.

Firstly, EU legislators decided upon a notice and action mechanism, and against formulating a narrower term, only allowing an intermediary to take one type of action, namely taking down content found to be unlawful, but also against a broader term requiring an intermediary to not only take action with respect to reported content, but also to make sure that it stays down. Secondly, the envisaged procedure (as to date) only applies to unlawful content[1], and does not apply to harmful content/treści szkodliwe, which is a term used to mean content that is not unlawful or not necessarily unlawful, but which equally should not be disseminated for other reasons, such as the public interest[2]. Thirdly, in principle, the procedure only applies to one type of intermediary service, which is hosting[3].

Article 14(2) of the DSA is quite specific about the kind of elements that need to be included in the notice for it to be considered credible information or a source of information, and the intermediary’s liability will depend on whether it has this information. Specifically, the notice must state the reasons for which a particular individual or organization regard the information in question to be unlawful; it must clearly state the electronic location of the reported content (in particular precise URL addresses and, where appropriate, other information that enables the unlawful content to be identified); it must identify the party submitting the notice by stating their first names and surname or name of organization, and always state an e-mail address. The notice also must contain a statement confirming that the person or organization submitting the notice have concluded in good faith that the information and allegations in the notice are true and complete. All of this must be submissible using the electronic means provided by the internet intermediary, such as forms. Importantly, as mentioned, the notice will be credible information in the meaning of article 5 of the DSA[4]. This means that the intermediary is required to take appropriate action promptly upon receiving the notice, to take down the unlawful content or prevent it being accessed. If this does not happen, for example no action is taken in response to the notice, the hosting provider will be liable for the content stored for the benefit of the user.

An intermediary is also required to confirm receipt of the notice promptly (this applies to any notices containing data identifying the person submitting the notice and their e-mail address, but not necessarily other information required for credible information) and to promptly notify the person submitting the notice of their decision with respect to the content being the subject of the notice. In this regard, the DSA does not specify whether this has to be prior to or subsequent to implementing that decision. This notification gives the person submitting the notice an option of contesting the intermediary’s decision.

Under the DSA, an intermediary is required to contact not only the person submitting the notice, but the service user as well (referred to here as the user). Under article 15(1) of the DSA, the hosting provider must notify the user of its decision and provide clear and detailed reasons, at the moment the unlawful content is taken down or access is blocked to the unlawful content at the latest. The reasons stated must include information on the nature of the decision reached, i.e. to take down or block access to the content, the territory covered by the decision, and the factors that led to that decision. It also has to state the legal or contractual grounds (grounds under the terms of use) enabling the reported content to be classified as unlawful and the means by which the user can contest the decision, in particular via internal mechanisms for reviewing complaints or alternative dispute resolution. The reasons must be sufficiently clear, specific, and detailed for the user to contest the intermediary’s decision in an effective way.

[1] Under article 2(g) of the DSA, unlawful content/nielegalne treści is any information that by itself or through reference to activity, including sale of products or provision of services, breaches EU law or the laws of a particular member state, regardless of the specific subject matter or nature of that law.

[2] This decision is explained in the statement of reasons for the DSA, stating that this is a sensitive area with serious implications for freedom of speech/jest to delikatny obszar o poważnych konsekwencjach dla ochrony wolności wypowiedzi. The term harmful content/treści szkodliwe is not defined in the DSA.

[3] Under article 2(f) of the DSA, hosting is storing information provided by a user at the user’s request/ przechowywanie informacji przekazanych przez odbiorcę usługi oraz na jego żądanie.

[4] Article 14(3) of the DSA clarifies specifically that a notice of this kind is a basis for obtaining credible information or knowledge for the purposes of article 5 with respect to the particular information to which it relates/uznaje się za będące podstawą uzyskania wiarygodnej wiadomości lub wiedzy do celów art. 5 w odniesieniu do określonej informacji, której dotyczą. In practice, in principle this only means that these notices are in fact information or a source of knowledge of that kind.