The European Commission’s new strategy to cover search engines –

The EU executive has presented a non-paper on how best to include search engines in the obligations of the Digital Services Act (DSA), responding to concerns that Google and others could escape the scope of the regulation.

The Commission’s non-paper on online search engines was shared with EU diplomats on Tuesday 29 March, presenting compromise text with a search engine-specific liability regime and due diligence obligations.

The DSA is based on the Directive on electronic commerce, which recognizes three types of services: the simple intermediary, namely the transmission of a communication; caching, which involves the automatic storage of transmitted information; and hosting, for information storage.

“The Commission services consider that it would be appropriate to recognize that online search engines have specific characteristics, which do not correspond perfectly to either caching or hosting services. This could be reflected in a separate article with specific rules,” reads the non-paper, seen by EURACTIV.

The document took stock of the different positions of the EU institutions, noting in particular that the Parliament’s text is close to the original proposal to assess search engine services on a case-by-case basis, but that some of the wording added could create legal uncertainty.

The Council’s mandate included search engines as an additional category, giving them the same liability provisions as caching services. Therefore, search engines would have no incentive to remove illegal content, even if they are aware of it.

The non-paper includes a new definition of search engines as “a service that allows recipients of the service to enter queries to search on, in principle, all websites, or all websites in a particular language, based on a query on any topic as a keyword, voice prompt, phrase, or other input, and returns results in any format in which the information relating to the requested content can be found.

A new article on online search engines (Art. 4a) would exempt them from liability for illegal content or activity unless they are unaware of it and take immediate action to remove it as soon as they are aware of it.

A new article on very large search engines (Art. 33a) subjects them to the same rules as very large online platforms, namely those with more than 45 million users in the EU, including the evaluation and risk mitigation.

For the Commission, the proposed text is “in line with similar legal treatment in the United States (DMCA), as well as certain national legislation and case law. This would recognize existing practices and reduce legal uncertainty and fragmentation in the EU.”

France, in particular, raised concerns during negotiations in the EU Council about the need to modify the proposal to ensure that search engines would not fall through the net of the new EU regulation. EU for the Internet Economy and lobbied for them to be treated as a Fourth Category.

An EU diplomat told EURACTIV that France’s concern is to ensure that Google is in scope, noting that the Commission’s text is so close to the French position that it would not not surprising that the proposal was drafted in Paris.

A second diplomat pointed out that not everyone is convinced that this addition to the text is necessary and could create more legal confusion than clarity.

Search engines were not included in the French Presidency’s request for an updated negotiating mandate with the European Parliament. However, a third diplomatic source told EURACTIV that this could be a red line for a country like Spain.

[Edited by Nathalie Weatherald]

Rosemary S. Bishop