Success of DSM strategy will depend on innovation-friendly intermediary liability environment

Tomorrow’s publication of the Commission’s Digital Single Market strategy will be a key moment in the drive to create an enhanced and competitive digital Europe,  open to operators of any size, nature and establishment. That said, the European Internet Services Providers Association (EuroISPA) believes it is paramount that policymakers remain focused of the necessity of an innovation-friendly liability environment for Internet intermediaries. Without such, we fear the strategy’s lofty ambitions will be jeopardised.

The commitments the DSM will make on topics such as copyright reform, the free flow of data, and cross-border e-commerce constitute positive steps. Indeed, as having been a key participator in policy discussions on many areas of the strategy for several years, EuroISPA welcomes the Commission’s ambitions.

Nonetheless, it is paramount that we take this moment to reflect on the legislative infrastructure that forms the basis of a truly digital single market in Europe. An innovation-friendly intermediary liability environment, as prescribed by the 2000 E-Commerce Directive, will define the strategy’s success. We welcome the Commission’s acceptance in the DSM strategy that the intermediary liability environment enshrined in the E-Commerce Directive “has underpinned the development of the Internet in Europe”.

However, we are concerned about the impending strategy’s proposals to tackle illegal content online. The use of concepts such as “due diligence” and “duty of care” suggest that Internet intermediaries (as opposed to law enforcement authorities) will be asked to perform value judgments concerning the legality of certain pieces of content on the Internet. Such a legislative environment would place unworkable obligations on intermediaries, and would undermine the role of the courts in determining disputes over competing rights.

EuroISPA President Oliver Süme said: “EuroISPA looks forward to working with EU policymakers to ensure the right legislative infrastructure is maintained. The existing EU intermediary liability ethos has allowed Europe to be innovative, connected and competitive in all things digital. By maintaining this ethos when implementing the DSM strategy, EU policymakers will have the best chance of unleashing the digital single market’s growth and jobs potential.“