The Digital Services Act: Making the Internet Fair Again - Prof. Dr. Christoph Busch

The Digital Services Act:
Making the Internet Fair Again

                  Prof. Dr. Christoph Busch
   European Legal Studies Ins3tute, University of Osnabrück
         Informa3on Society Project, Yale Law School

                        14 June 2021

Due diligence obligations
for platforms

Liability of platforms

Personalised advertising

Due diligence obliga8ons
for pla9orms

Liability of pla9orms

Personalised adver8sing

SHOP SAFE Act   INFORM Consumers Act

Changing concept of marketplace
§ Online marketplaces, app stores
§ Social commerce:
  social media + e-commerce
§ Conversa8onal shopping:
  messenger, smart speaker
§ Livestream shopping:
  streamed e-commerce

Scope of due diligence obliga8ons?
Traders:
§ Verify iden8ty of traders
§ Verify registra8on requirements
  (e.g. short-term rentals)
                         Automated verifica/on:
                         Regula/on by API

Scope of due diligence obliga8ons?
                                           Traders:
                                           § Verify iden8ty of traders
                                           § Verify registra8on requirements
                                             (e.g. short-term rentals)

                                           Products:
Platforms as “regulatory intermediaries”   § Consult EU rapid alert system for
                                             dangerous products (Safety Gate)
                                           § Inform buyers of illegal products
                                             and in case of product recalls

Scope of due diligence obliga8ons?
                               Traders:
                               § Verify iden8ty of traders
                               § Verify registra8on requirements
                                 (e.g. short-term rentals)

                               Products:
Product Safety Pledge (2018)   § Consult EU rapid alert system for
                                 dangerous products (Safety Gate)
Proposed Amendment to Korean   § Inform buyers of illegal products
E-Commerce Act (March 2021)
                                 and in case of product recalls

Due diligence obliga8ons
for pla9orms

Liability of pla9orms

Personalised adver8sing

Loomis v. Amazon, 2021 WL 1608878   California AB 1182: Product liability
(Cal. App. Ct. April 26, 2021)
                                    (Products purchased online)

Broad liability shield for pla9orms
with some excep8ons:
§ Actual knowledge of illegal ac1vity
  or illegal content
§ Failure to act expedi1ously upon
  obtaining such knowledge
§ Impression that the offer is
  provided by the pla>orm itself
  or under its control
  (“apparent control”)

Broad liability shield for pla9orms
                                    with some excep8ons:
                                    § Actual knowledge of illegal ac1vity
                                      or illegal content
                                    § Failure to act expedi1ously upon
                                      obtaining such knowledge
                                    § Impression that the offer is
                                      provided by the pla>orm itself
                                      or under its control
How to assess “apparent control”?
                                      (“apparent control”)

Broad liability shield for pla9orms
                                with some excep8ons:
                                § Actual knowledge of illegal ac1vity
                                  or illegal content
                                § Failure to act expedi1ously upon
                                  obtaining such knowledge
                                § Impression that the offer is
                                  provided by the pla>orm itself
                                  or under its control
Dra$ IMCO Report, 28 May 2021     (“apparent control”)
Amendment 73

Further exclusions from
                                the liability privilege?
                                § Failure to comply with
                                  due diligence obliga1ons
                                § Failure to provide consumers
                                  with key informa1on items

Dra$ IMCO Report, 28 May 2021
Amendment 73

Further exclusions from
                                  the liability privilege?
                                  § Failure to comply with
                                    due diligence obliga1ons
                                  § Failure to provide consumers
                                    with key informa1on items

                                Korean Act on Consumer Protection
                                in Electronic Commerce (No. 6687)
Dra$ IMCO Report, 28 May 2021
Amendment 73                    § Duty to inform about the identity
                                  of the trader (Art. 20(1))
                                § Joint liability of platform if information is incorrect,
                                  unless platform has observed due diligence (Art. 20-2)

Further reading

§ C. Busch et al., The ELI Model Rules on Online PlaKorms
  [2020] Journal of European Consumer and Market Law 61-70.
  hUps://www.elsi.uni-osnabrueck.de/research_paper_series.html

§ C. Busch, Rethinking Product Liability Rules for Online Marketplaces:
  A ComparaYve Overview, ELSI Osnabrück Working Paper 1/2021,
  hUp://ssrn.com/abstract=3784466

§ C. Busch, RegulaYon of Digital PlaKorms as Infrastructures for Services of General
  Interest, WISO-Diskurs 04/2021, hUps://library.fes.de/pdf-files/wiso/17836.pdf
§ C. Busch & V. Mak, Pueng the Digital Services Act in Context,
  [2021] Journal of European Consumer and Market Law 109-115.

The Digital Services Act:
Making the Internet Fair Again

                   Prof. Dr. Christoph Busch
   University of Osnabrück, European Legal Studies Ins3tute
         Yale Law School , Informa3on Society Project

                  TwiTer: @christophbusch