Abstract

Under the legal framework of Directive 2000/31/EC on e-commerce, online intermediaries who on their own initiative moderated illegal content were often exposed to the risk of losing the possibility of invoking the exclusion of liability due to the allegation that by undertaking such proactive content moderation they could have had control over user contents, which means that they did not provide the service in a purely technical, automatic and passive manner.
To create legal certainty and not discourage the activities aimed at detecting, identifying and combating illegal content voluntarily undertaken by providers of all kinds of intermediary services, protection of the activities of a good Samaritan previously unknown in the EU system of liability of online intermediaries has been introduced into the Digital Services Act. According to Art. 7 of the DSA, intermediary service providers cannot be considered as not entitled to benefit from the exclusions of liability only because they carry out, in good faith and with due diligence, voluntary checks on their own initiative or take other measures to detect, identify and remove illegal content or prevent access to it, or take necessary measures to comply with EU and EU compatible national law, including the requirements set out in the DSA. When determining whether an intermediary may invoke the exclusion of liability, in particular with regard to whether they provide their services in a neutral manner and can therefore fall within the scope of the relevant provision, the actions and measures undertaken by the provider on their own initiative should not be taken into account,. However, it should be noted that Art. 7 of the DSA does not modify the prerequisites for exemption from liability of hosting providers who, on their own initiative, undertake to moderate illegal content, and in particular do not remove the component of “awareness” of the illegal content. In practice, this means that if a hosting provider undertakes proactive monitoring of content and on this basis learns about illegal content available under the service, they will be obliged to remove it in order not to become liable. However, it seems that contrary to expectations, owing to the vague prerequisites laid down in Art. 7 of the DSA, as well as merely partial protection resulting from this regulation (unlike e.g. in US law), the importance of the so-called Good Samaritan clause will not be so significant in practice.