Rising Above Liability: The Digital Services Act as a Blueprint for the Second Generation of Global Internet Rules

Berkeley Technology Law Journal Vol. 38, No. 3, Forthcoming

37 Pages Posted: 7 Nov 2023

See all articles by Martin Husovec

Martin Husovec

London School of Economics - Law School

Date Written: October 10, 2023

Abstract

Twenty-five years ago, in 1998, the United States Congress developed a blueprint for the global regulation of the Internet. Section 512 of the Digital Millennium Copyright Act (DMCA) recognized that user-generated content will be crucial to most digital services and offered up-front assurances from liability to some providers subject to conditions. What started as a sectorial conditional immunity system in copyright law was immediately scaled up into an all-encompassing horizontal rulebook in the European Union through the E-Commerce Directive (ECD) in 2000 —recently updated into the Digital Services Act (DSA). The two jurisdictions inspired many other countries to start granting conditional immunity—liability exemptions that require at least providers’ knowledge of others’ actions to expose them to liability for those actions.

The last two decades have largely validated the DMCA’s conditional immunity as a feasible baseline approach to the regulation of Internet communications that power global exchanges of ideas, goods, and services. However, the conditional immunity model has its limits. It was not designed to offer a complex solution for new challenges. Firstly, many of them were not known or debated at the time. Second, only a tiny fraction of humanity used the Internet, and if people did use it, it was not a large part of their lives. At the time of the E-Commerce Directive’s adoption in 2000, less than 7 % of the world population used the Internet.

The DSA is the first comprehensive attempt to create a second generation of rules for digital services that rely on user-generated content. Unlike previous sectorial initiatives, its approach is sweepingly horizontal. The DSA requires some level participation from both state and non-state institutions for its system of checks and balances to work, and some of its solutions can be “too European”. However, the principles behind the DSA could be useful in other jurisdictions -- perhaps even in the United States. The United Kingdom, which is currently developing its own set of post-Brexit rules, continues to build on some of the same principles as the DSA.

Keywords: platforms, online content, intermediaries, liability exemptions

JEL Classification: K00

Suggested Citation

Husovec, Martin, Rising Above Liability: The Digital Services Act as a Blueprint for the Second Generation of Global Internet Rules (October 10, 2023). Berkeley Technology Law Journal Vol. 38, No. 3, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4598426 or http://dx.doi.org/10.2139/ssrn.4598426

Martin Husovec (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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