Just when the negotiations on the final version of the Digital Services Act seemed to be finally over, the French Presidency of the EU Council smuggled in changes, that, as European Parliament’s policy-makers and industry experts warn, could negatively impact users of a wide range of online platforms.

Stay-down obligation

French Presidency again introduced the so-called stay-down obligation that was previously thrown out amid various concerns. The obligation would force digital companies to ensure that illegal content does not reappear on their platforms after being removed. In practice, this could lead to general monitoring, in other words, vetting and checking of all content users try to post online. Not only might this worsen user experience and slow down the upload of content (due to the need to conduct checks first), but various court rulings found general monitoring illegal.

This “concealed” addition has therefore raised eyebrows on the faces of both policy-makers from the European Parliament and industry leaders. Internal correspondence of the staff from the Renew and Green groups obtained by Politico shows annoyance with including a clause which Parliament rallied against in the past. The announced “compromise” text perhaps is not what it pretends to be.

On top of that, 8 lobby groups (CCIA Europe, Allied for Startups, DOT Europe, Developers Alliance, etc.) have sent out a joint letter raising deep concern about the reappearance of a stay-down provision. The letter says that “changes made to the proposal … will now considerably hinder freedom of expression while paving the way for constant monitoring of activities conducted online. This will additionally be impossible to implement for companies, leading to strong legal uncertainties with no proven positive outcomes on the dissemination of illegal content online.”

Over-blocking of content

The French Presidency tries to add in another obligation – its version of the EU’s Code of conduct on illegal hate speech contains a proposal for a 24-hour deadline in which online platforms would have to remove illegal content. It is, of course, right to take down such content as fast as possible, however, putting in place such a limited amount of time might hamper proper processes and cause the platforms to over-block content, thus limiting freedom of expression. These concerns were also raised in the leaked internal correspondence of the Renew and Green groups.

Furthermore, if such provision is applied either too broadly or to a wide range of businesses, including start-ups, it has the potential to endanger the Commission’s vision to make the EU a global innovation leader. Start-ups do not have as many financial and human resources as big corporations do, and adhering to short time windows might not be feasible in the short run. Consequentially, they could either pack it up, leaving European consumers without innovation and competition, or risk fines.