rightsholders make last push for search engine takedown obligations – EURACTIV.com

A last-minute proposal to change the online search engine liability regime in the Digital Services Act (DSA) has been circulated to the European Parliament. It should receive the support of the Commission and the Council of the EU.

The proposal was circulated before the Easter holidays in the form of a note from Geoffroy Didier, who represented the Legal Affairs Committee (JURI) in the DSA discussions. The initiative is being pushed by the alliance of rightsholders and taps into a long debate over how to include search engines within the scope of the legislation.

The next – and possibly the last – high-level meeting between EU lawmakers will take place on Friday 22 April.

The note expresses its support for the European Commission’s proposal, which defines search engines as a ad hoc category that would be required to remove illegal content once it is reported to them. At the same time, Didier proposes some modifications to the Commission’s text.

The memo asked to remove part of the preamble from the text providing examples of “mere intermediary”, “caching” and “hosting” services, categories with different liability regimes established in the Trade Directive electronics, the predecessor of the DSA. These examples were too descriptive for rights holders who prefer a case-by-case trial.

Another change would require that if illegal content is flagged, not only the relevant web pages, but the whole website should be delisted, i.e. removed by search results. In the most extreme case, this would mean that if a video is illegally uploaded to YouTube, Google would have to remove the entire platform from its search results.

Finally, an edit to an article would force search engines to remove all search results that refer to the reported illegal content, not just the specific website. In other words, platforms should monitor all websites for illegal content.

For search engines, this would imply nothing less than a general monitoring obligation; a principle rejected in the copyright directive. By contrast, rightsholders consider it to be “specific” surveillance, as it targets illegal content recognizable via specific electronic patterns.

Additionally, search engines note that, compared to other platforms, they do not have a direct relationship with website managers. Therefore, they might not know if a specific content, like a movie, is provided on one website illegally and on another legally, because they ignore the contractual relationship between the websites and the rights holders.

In other words, the search engine would have no way of knowing if a takedown request is warranted without contacting the website owner, which it currently has no way of doing. Therefore, search engines may have to enter into a contractual relationship with the website owner.

Until now, websites have been responsible for hosting illegal content. Yet search engines now fear that by including them in this liability regime, they will become prime targets for takedown notices, increasing their administrative burden exponentially.

Risk of overblocking

Another concern is overblocking, as legal content can also be deleted accidentally. Thus, the proposal is likely to meet opposition from Scandinavian countries traditionally sensitive to the argument of freedom of expression, an EU diplomat told EURACTIV.

“The entertainment industry knows the Commission is in favor of a specific notice-and-takedown obligation for search engines, so they are building on something the Commission already supports and making it worse,” said the former MEP Felix Reda at EURACTIV.

“The overall objective of these amendments is to significantly extend website blocking obligations to a wide range of online services at the expense of freedom of expression.”

According to a source informed on the subject, the European Commission is in favor of the proposal, and has actively promoted it among the political groups of the European Parliament. A second source also confirmed the Commission’s position, adding that it had also been accepted by the Council Presidency. France has always been sensitive to the requests of rights holders.

Just before the latest political trilogue on the Digital Markets Act, the DSA’s sister proposal, the European Commission made a last-minute proposal promoting publishers’ interest with the support of the French Presidency, trying to reopen yet another Dispute terminated by the Copyright Directive.

The proposal was revealed by EURACTIV a few hours before the start of the trialogue, alerting MEPs who ultimately rejected it. On the other hand, this time the last minute attempt comes from the European Parliament, trying to win the support of lawmakers before the negotiation.

According to a European Parliament official, at a technical meeting earlier this week, all political groups opposed the proposal. However, the parliamentary source was concerned about what rapporteur Christel Schaldemose might do in the final trilogue, as she had previously defended the example of the cultural sector during discussions on the media exemption.

According to a third source, the European Commission is working on a new proposal on search engines, but it is still unclear whether it will be shared before the trialogue or during the negotiations, in case the first proposal is rejected.

[Edited by Nathalie Weatherald]

Rosemary S. Bishop