'One of the reasons that Techdirt and many others fought so hard against the worst ideas of the EU Copyright Directive is that it was clearly the thin end of the wedge. If things like upload filters and the imposition of intermediary liability become widely implemented as the result of legal requirements in the field of copyright, it would only be a matter of time before they were extended to other domains. Netzpolitik has obtained a seven-page European Commission paper sketching ideas for a new EU Digital Services Act (pdf) that suggests doing exactly that. The Act's reach is extremely wide:
The scope would cover all digital services, and in particular online platforms. This means the clarification would address all services across the internet stack from mere conduits such as ISPs to cloud hosting services; while a special emphasis in the assessment would be dedicated to updated rules for online platforms such as social media, search engines, or collaborative economy services, as well as for online advertising services.
A core aim is to replace the e-Commerce Directive, passed in 2000. This is presented as "outdated", but the suggestions in the paper are clearly a continuation of attacks on the fundamental principles underlying the open Internet that began with the Copyright Directive.
One of the problems for the EU when pushing through the upload filters of Article 13/17 in the Copyright Directive is that Article 15 of the e-Commerce Directive explicitly states that there is "No general obligation to monitor". Constant surveillance is the only way that upload filters can work -- if you don't monitor all the time, you can't be sure you block everything that the law requires. Furthermore, Article 14 of the e-Commerce Directive emphasizes that "the service provider is not liable for the information stored at the request of a recipient of the service". That's subject to certain conditions, such as being required to remove material that infringes on copyright, but only after being informed of its presence on their servers. The new Digital Services Act wants to force Internet companies to move beyond reactive behavior:
a binding "Good Samaritan provision" would encourage and incentivise proactive measures, by clarifying the lack of liability as a result of Such measures
The paper goes on to repeat the EU's earlier attempts to pretend that upload filters are not a glaring example of general monitoring -- something that EU courts may well be asked to rule on. The leaked document says:
While the prohibition of general monitoring obligations should be maintained as another foundational cornerstone of Internet regulation, specific provisions governing algorithms for automated filtering technologies -- where these are used -- should be considered, to provide the necessary transparency and accountability of automated content moderation Systems.'
Read more: EU Looking To Regulate Everything Online, And To Make Sites Proactively Remove Material