Abstract

Following the entry into force of the full application of Regulation (EU) 2022/2065 of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act, hereinafter: “DSA”), a new catalogue of obligations has emerged within the legal order of the European Union for providers of intermediary services, including hosting services providers. One of these obligations is the duty to promptly inform the competent authorities of a suspicion of a criminal offence posing a threat to the life or safety of persons, as provided for in Article 18(1) of the DSA. Emphasis should be put to the wording “a crime is likely to take place” used by the EU legislator, which goes beyond the traditional understanding of the duty to report criminal offences known under Polish law, in particular Article 304 §1 of the Code of Criminal Procedure. This raises questions regarding the scope of the new obligation and the limits of the responsibility borne by hosting services providers, who are required to make decisions in conditions of uncertainty regarding a legal qualification of the disclosed content. The article examines the origins of this regulation, its relationship with domestic procedural law, and selected solutions adopted in other Member States, and assesses whether Article 18(1) of the DSA introduces a qualitatively new legal standard or merely modifies existing mechanisms for reporting criminal offences.