DOT Europe, which used to be called the European Digital Media Association (EDiMA) and which calls itself “the voice of the leading internet companies”, has called for the introduction of a legal safeguard to “enhance the ability of internet companies to tackle illegal content online within the Digital Services Act”. It is worth noting that it is questionable whether, as a legal matter, such a safeguard is necessary. We are not aware of any cases where ‘Good Samaritans” were held liable for doing the right thing in the EU. Moreover, DOT members routinely reserve for themselves the right to take such action in their terms of service.

The association says that a legal safeguard would “allow companies to take proactive actions to remove illegal content and activity from their services, without the risk of additional liability for those attempts to tackle illegal content”. In DOT Europe’s view, the lack of such a safeguard within the DSA has “a chilling effect on service providers who want to do more to tackle illegal activity online”.

DOT Europe explains that in the USA, the “Good Samaritan” principle allows service providers to take measures to address illegal and harmful content without incurring liability. However, this principle is often viewed as a carte blanche for service providers to overact on content that is not strictly illegal. Therefore, DOT Europe is proposing a safeguard that is based clearly on EU law and is subject to European oversight in order to protect freedom of expression.

The paper recommends the introduction of minimum information levels in notices of illegal content and the requirement for a human review of appeals of removal of content. The paper acknowledges the need for an appropriate governance structure to manage these provisions and DOT Europe says that it will set out in detail potential approaches to governance in the final paper in its Online Responsibility Framework series. To read DOT Europe’s press release in full and for a link to the paper, click here.