Kuczerawy, Aleksandra

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The Good Samaritan that wasn’t:voluntary monitoring under the (draft)Digital Services ActAleksandra Kuczerawy 2021-01-12T14:25:00On 15 December 2020, the European Commission released the long awaitedproposal for the Digital Services Act (DSA), amending the E-Commerce Directive2000/31. First impressions (see here and here) of the proposal mention that the DSAintroduces Good Samaritan protection into the EU intermediary liability regime. Apossibility of introducing such a protection was discussed earlier (see Joan Baratahere). Upon further examination, however, it is clear that the new protection is yetsomething else.Protecting “Good Samaritans”In the United States, internet intermediaries – among others, social media platformslike Twitter and Facebook – enjoy “Good Samaritan” protection per Section 230(47 U.S.C. § 230). Section 230(c) provides that online intermediaries should notbe held liable for any voluntary actions taken in good faith against certain types ofobjectionable content. In particular, it refers to content that “the provider or userconsiders to be obscene, lewd, lascivious, filthy, excessively violent, harassing, orotherwise objectionable, whether or not such material is constitutionally protected.”The aim of this provision was to overrule Stratton-Oakmont v. Prodigy, wherean online service provider was found liable for defamatory content uploaded bythird parties, because it had tried to detect and remove the objectionable content,but had failed to do so completely. Section 230 also provides that intermediariesshall not be treated as the publisher or speaker of any information provided byanother information content provider.Section 230 essentially protects intermediaries when they act with good intentions torestrict access to or availability of content. But it also protects intermediaries whenthey do not act against such content, regardless of whether they have knowledge ofit or not (provided that this is not content excluded from the scope of Section 230 (c),such as content that violates federal criminal law, e.g. certain child abuse materialor terrorist content). The broad protection has been confirmed by extensive caselaw (see blog of Eric Goldman). Section 230 is considered as a crucial provision thatenabled the development of the internet as we know it today (see Jeff Kosseff, TheTwenty Six Words That Created the Internet).While Section 230 is subject to increasing criticism in the United States, this will notbe discussed further here (for an overview of proposals to amend Section 230 seehere).- 1 -No “Good Samaritan” protection under the E-Commerce DirectiveIn the European Union, the E-Commerce Directive (ECD) does not explicitlyprotect internet intermediaries involved in good faith measures against illegal orinappropriate content. Instead, the Directive focuses on knowledge of illegal content,either actual, or constructive.Per Article 14 ECD, hosting providers can benefit from a liability exemption forhosted speech on condition that they (1) do not have actual knowledge of illegalactivity or information and, as regards claims for damages, are not aware of facts orcircumstances from which the illegal activity or information is apparent (constructiveknowledge); (2) upon obtaining such knowledge or awareness, they act expeditiouslyto remove or to disable access to the information.Article 15 ECD prohibits Member States from introducing obligations of generalmonitoring for intermediaries. However, both specific monitoring obligations andvoluntary monitoring on the intermediaries’ own initiative are allowed. But voluntarymonitoring could be tricky, as it could lead to awareness of facts or circumstancesfrom which an illegal activity or information is apparent, and therefore to obtainingconstructive knowledge (see more here). As a result, voluntary monitoring could leadto loss of the liability exemption for hosting providers. Nevertheless, the EuropeanCommission (EC) has already for quite some time been trying to encourage hostingproviders to take up a more proactive approach to content moderation on theirservices.Towards Good Samaritan protection in the EU?The EC has stimulated voluntary removal of content in, for example, the 2016  Codeof Conduct on hate speech, the 2017 Communication on Tackling Illegal Content, orthe 2018 Recommendation on Measures to Effectively Tackle Illegal Content Online.Inviting private companies to voluntarily monitor, remove or otherwise decrease thevisibility of undesirable content raises freedom of expression concerns (see morehere on “interference by proxy”). At the same time, private companies are, strictlyspeaking, not directly bound by human rights instruments, and the safeguarding ofrights or freedoms. An invitation to voluntarily police content also circumvents thegeneral monitoring prohibition of Article 15 ECD, as there is no obligation to monitor,only encouragement. But how to successfully convince intermediaries to engagein voluntary measures, if it could deprive them of the immunity offered by Article 14ECD?The EC has entertained the idea of introducing a type of European Good Samaritanprotection for some time. The idea was most prominently expressed in the2017 Communication on Tackling Illegal Content, which referred to proactivemeasures as ‘so-called “Good Samaritan” actions’. The EC argued that undertakingproactive measures would not automatically lead to a loss of the liability exemption- 2 -provided for in Article 14 ECD. The reason being that under Article 14 ECD, to claimimmunity, hosts already have to act expeditiously when they obtain knowledge orawareness. As I have written previously, the EC’s interpretation offered only half ofthe Good Samaritan protection. Intermediaries in the EU would not lose the immunityif they took voluntary action resulting in the removal of unlawful or infringing content,but they would not be protected if they did not act (either as a result of a consciousdecision or by omission).The DSA updateHow do the EC’s efforts for Good Samaritan protection translate into the DSA? TheExplanatory Memorandum to the DSA clarifies that the rules on intermediaries buildon the ECD. The proposal reproduces the old Articles 12-15 ECD (now Articles 3, 4,5, and 7) and provides some additional clarifications. For example, Recital 18 statesthat the liability exemptions should not apply when the provider, instead of providingthe services neutrally, by a merely technical and automatic processing of theinformation provided by the recipient of the service, “plays an active role of such akind as to give it knowledge of, or control over, that information.” That codifies earlierinterpretations, as well as CJEU rulings in  Google France and  L’Oréal v. eBay, thatproviding ‘active’ services may lead to the loss of immunity if knowledge could beestablished. Article 6 DSA is where some might argue a Good Samaritan protectioncould be found. It aims to eliminate existing disincentives towards voluntary own-investigations undertaken by internet intermediaries:“Providers of intermediary services shall not be deemed ineligible for the exemptionsfrom liability referred to in Articles 3, 4 and 5 solely because they carry out voluntaryown-initiative investigations or other activities aimed at detecting, identifyingand removing, or disabling of access to, illegal content, or take the necessarymeasures to comply with the requirements of Union law, including those set out inthis Regulation.”In other words, voluntary measures taken by intermediaries on their own initiativeshould not be the sole reason for the loss of immunity. Recital 25 of the proposalexplains that “the mere fact that providers undertake such activities does not lead tothe unavailability of the exemptions from liability,” if those activities are undertaken“in good faith and in a diligent manner.” This applies to activities taken to complywith the requirements of EU law, including those set out in the DSA “as regards theimplementation of their terms and conditions.” The latter is an interesting additionbecause removals on the basis of terms and conditions are easier and faster forhosts, since they award more discretion to remove content that is unwanted but notnecessarily illegal. The recital adds that any such activities should not be taken intoaccount when determining if the service is provided in a neutral manner.Recital 25 concludes that the rule on determination of neutrality does not imply “thatthe provider can necessarily rely thereon.” In other words, taking voluntary actionsin good faith neither guarantees not precludes neutrality. The possibility of losingimmunity still exists. Could that be the case when the host undertakes voluntaryactions but not particularly successful ones? Would unsuccessful voluntary actions- 3 -be considered as not undertaken in a “diligent manner”? Could it actually discouragehosts from taking one-time voluntary decisions in particular cases if no coherentframework for ‘diligence’ is in place?Moreover, as specified in Recital 22, to benefit from the liability exemption, providersof hosting services should act expeditiously to remove or to disable access tocontent upon obtaining actual knowledge or awareness of its illegal character. Suchknowledge or awareness can be obtained through own-initiative investigations ornotices submitted by individuals or entities in accordance with the DSA. So, eventhough voluntary actions by providers would not mean automatic loss of immunity,in specific cases, they might lead to knowledge. For example, if a moderator trainedto review for one type illegality (e.g. incitement to violence) looked at a video, butfailed to recognize that it contained another type (e.g. defamation). In such a case,not removing content could still result in liability because the host ‘knew’ or ‘shouldhave known’ about the illegality.More protection but only for more take-downs?Article 6 DSA is an interesting addition to the EU intermediary liability regime. Theprovision clearly attempts to incentivize hosting providers to take more initiativeagainst illegal content, but also content that may violate their self-set terms andconditions, without an immediate risk of losing immunity. This is, of course, welcomefrom the perspective of hosting providers, as it allows them to moderate contentwithout necessarily being considered as “active”. It also furthers policy-makers’ goalto have intermediaries “do more” content policing without violating the prohibition ofgeneral monitoring obligation. At the same time, it is questionable whether facilitatingmore voluntary removals is actually beneficial from the perspective of users and theirright to freedom of expression.Hosting providers who, until now, may have preferred to remain modest in theirvoluntary monitoring attempts, because of the risk of being considered activeproviders with knowledge, need no longer have such qualms. The effect of Article6 DSA, therefore, could be more content removals. It would be safer for the hostingproviders to remain cautious and remove more, rather than less, in avoidance ofliability. This outcome would be at odds with one of the goals of the DSA proposal:to ensure more protection for fundamental rights online, in particular the freedom ofexpression (e.g. in Recitals 3, 22, 41, and 42). It could also deprive the statementin Recital 22, that the “removal or disabling of access should be undertaken in theobservance of the principle of freedom of expression,” of any deeper meaning. Atthe same time, as pointed out earlier, conducting the voluntary actions in a less thandiligent manner may lead to the loss of immunity, possibly creating an obstacle formore ad hoc voluntary action. Is this contradiction introduced in the text on purposeto balance out the two possible outcomes? And if so, does the new provision actuallyprovide any additional legal certainty? Or will the lack of clarity effectively undercutthe Commission’s objectives?- 4 -Looking aheadIt will be interesting to see if and how Article 6 DSA evolves during the legislativeprocess. It seems that its main outcome could be more removals by hostingproviders on their own initiative, rather than increased protection of the right tofreedom of expression. In that sense, the effect would be quite different than the oneof Section 230. But several questions remain. Most notably, it is not immediatelyclear from the text if providers that attempted to take voluntary actions, but wereunsuccessful, would still be protected. A case-by-case analysis (e.g. looking at thetechnology used) would be necessary. Hopefully, the final text of Article 6 DSAwill bring more clarity. In any case, it might be time we all stop referring to the newprotection as a Good Samaritan clause – the DSA does not use the term – as it hasvery little in common with its Section 230 counterpart.The author would like to thank Daphne Keller for her helpful feedback.- 5 -

The Good Samaritan that wasn’t: voluntary monitoring under the (draft) Digital Services Act

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The Good Samaritan that wasn’t: voluntary monitoring under the (draft) Digital Services Act

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