Arcom's position on the European Digital Services Act (DSA)

As negotiations on European legislation on digital services continue within the framework of the trilogues, Arcom supports the position and proposals adopted by ERGA, the European Audiovisual Media Services Regulators' Group (appendix 1), and expresses its position and proposals on the challenges of this legislation in terms of copyright and the fight agains piracy.

Like ERGA, Arcom underscores the importance and relevance of the European Commission's proposed legislation on digital services, with a view to establishing Europe-wide regulation of online content platforms that is both protective of audiences and respectful of freedoms. It broadly endorses the proposal's ambitious approach, which is fully in line with the e-commerce directive and, in particular, maintains the absence of a general monitoring obligation for intermediaries, while increasing their due diligence obligations.

Arcom supports the advances proposed by the co-legislators, particularly with regard to :

• media freedom and plurality, which must be taken into account by the major players in their terms of service and moderation practices;
• a clear commitment and concrete proposals to make the digital world safer and more respectful of users' rights, particularly those of person under 18s ;
• greater accountability and stricter obligations for very large platforms and search engines, which are relevant given their size, impact and the risks they can raise;
• better access to platform data for regulators, who should no longer be bound by business secrecy, as well as to information on how algorithms work;
• preservation of the country-of-origin principle, while enabling destination authorities to contribute more to the supervision of platforms, so that the national context and specificities are better taken into account, in order to better protect citizens in the various member states;
• the obligation to grant adequate human and financial resources, as well as the necessary autonomy to manage their means, to regulators so that they can successfully carry out the missions conferred by the new legislation.

Arcom stresses that further improvements could be made to the role and missions of the regulators:

• ERGA and national regulatory authorities should be browsed in the event that the Commission has exclusive competence in the supervision of very large players (with regard to their specific provisions), as well as in the event that the Commission needs to prepare guidelines on the interaction between digital services legislation and other legislative acts, notably sector-specific, such as the Audiovisual Media Services Directive (AVMS Directive);
• ERGA should be involved in theassessment of risks and risk mitigation measures by very large players to ensure the application of fundamental rights and the protection of users/citizens;
• live streaming players, in particular content-sharing services, should be explicitly included in the scope of the DSA, to ensure consistency with the AVMS Directive and that all such service providers are subject to the new rules.

In addition, Arcom would like to draw the attention of the co-legislators to the following points, which seem to it to be at the heart of the challenges not only in the fight against piracy, but also in the fight against unlawful content in general:

• the need to extend the "Know your business customer" obligation to all intermediaries;
• the need to expressly include domain name schemes in simple transport services in order to facilitate the implementation of blocking measures by these services and to ensure the effectiveness of such measures in the future;
• the need to ensure that injunctions requiring an intermediary to prevent or terminate an infringement can be obtained against the intermediary whose action will be most useful;
• the need to avoid imposing on intermediaries, and in particular ISPs, the obligation to notify blocked sites of measures affecting them, even though ISPs are already actively involved in the fight agains unlawful services by blocking them, sometimes at their own expense.

More detailed information and proposals on these points can be found in the two appendices that follow.