The Digital Services Act and the Reproduction of Old Confusions

While the DSA is intended to refit the 20-year-old E-Commerce Directive, it reproduces a central confusion in its predecessor: The interplay between a lack of knowledge or awareness of illegality remains a precondition to enjoy liability exemptions, however, the DSA encourages platforms proactive investigation of hosted content, which might trigger aforementioned knowledge or awareness. The inclusion of a Section 230-like ‘good Samaritan clause’, meant to facilitate proactive, own-initiative investigations by platforms, complicates matters further, and will likely incentivize the over-removal of hosted content. Read more at Verfassungsblog.