The Interplay between the Digital Services Act and Sector Regulation: How Special Is Copyright?

On 15 December 2020, the European Commission published its proposal for the Digital Services Act, which is expected to be adopted before summer 2022. It carries out a regulatory overhaul of the twenty-one-year-old horizontal rules on intermediary liability in the e-Commerce Directive and introduces new due diligence obligations for intermediary services. Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules?

In this article, we look specifically at the intersection of the Digital Services Act with the regime for online content-sharing service providers (OCSSPs) set forth in Article 17 of Directive (EU) 2019/790 on Copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap, as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the Digital Services Act will apply to OCSSPs insofar as it contains rules that regulate matters not covered by Article 17 CDSM Directive, as well as specific rules on matters where Article 17 leaves a margin of discretion to Member States.

This includes, to varying degrees, rules in the Digital Services Act relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where Article 17 CDSM Directive contains specific (but less precise) regulation on the matter. From a normative perspective, this might be a desirable outcome, to the extent that the Digital Services Act aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might help us to achieve that goal.