Distinguishing ‘harmful’ and ‘illegal’ content in the DSA [finished]

The ILP Lab is partnering with the DSA observatory and the data rights agency AWO to investigate the proposed requirement for online intermediaries to distinguish ‘harmful’ and ‘illegal’ content on their services. In the proposal for a Digital Services Act (COM/2020/825 final), the European Commission amongst other things urges providers of intermediary services to take action against illegal content online, while fully respecting fundamental rights: “The proposal will only require removal of illegal content and will impose mandatory safeguards when users’ information is removed, including the provision of explanatory information to the user, complaint mechanisms supported by the service providers as well as external out-of-court dispute resolution mechanism.” As regards the point that only illegal content is subject to removal, the explanatory memorandum explains that there is “a general agreement among stakeholders that ‘harmful’ (yet not, or at least not necessarily, illegal) content should not be defined in the Digital Services Act and should not be subject to removal obligations, as this is a delicate area with severe implications for the protection of freedom of expression.” In light of this, the project examines whether in practice it is really feasible to draw a clear distinction between ‘harmful’ and ‘illegal’ content and, if not, how this impacts on the protection of freedom of expression.