Abstract

The exclusion provided for in Art. 6 of the Digital Services Act disclaiming liability of the provider of intermediary hosting services is largely a continuation of the existing regulation laid down in Art. 14 of Directive 2000/31/EC. The fundamental condition for the possibility of invoking exclusion of liability is that the provider maintains neutrality with regard to the stored content. Therefore, they cannot take actions that will allow them to gain knowledge about or control over the stored content. The prerequisites for exclusion of liability are built as a cascade. In the first place, the provider must not be aware of the illegal activities or the illegal content, whereas in relation to compensation claims, they must not be aware of the facts or the circumstances which clearly indicate the illegal activity or the illegal content. If such knowledge is obtained, then, in order to retain exclusion of liability, the provider must take immediate action to remove or prevent access to the illegal content.
The possibility of invoking exclusion of liability shall be excluded if the recipient of the service is acting under the authority or control of the provider. On the other hand, an online platform enabling consumers to conclude distance contracts with entrepreneurs will not be able to invoke exclusion of their liability under consumer protection law, where the platforms provide specific information on specific products or services being the subject of a transaction between a trader operating on the platform and a consumer, or otherwise enable the transaction to be concluded in a manner that would make the average consumer confident that a particular information, product or service is delivered or provided by the online platform itself or by a recipient of a service under its authority or control.
Hosting service providers have no general obligation to monitor the information they store or actively establish the facts or the circumstances that indicate the illegal activity.
A new solution is the notice and action mechanism provided for in Art. 16 AUC. Hosting service providers are required to implement solutions that need to be easily accessible and user-friendly. At the same time, they must allow only electronic notices to be made. The EU legislator also requires that the systems described be designed in such a way so as to facilitate submitting sufficiently precise and duly justified notices. Elements of the content of submissions are laid down in the regulations and are strictly defined, including, among others, indication of the exact electronic location of the reported content. The receipt of a notice shall be confirmed by the provider, and then they must take their decisions in respect of the information to which the notices relates in a timely, diligent, non-arbitrary and objective manner.