January 7, 2022
Digital Services Act
Article 13 b (new)
Text proposed by the Commission
Amendment
Article 13b
Traceability of business users
1.
A provider of intermediary services
shal ensure that business users can only use
its services if the provider of intermediary
service has obtained the fol owing
information:
(a)
the name, address, telephone number
and electronic mail address of the business
user;
(b)
a copy of the identification document
of the business user or any other electronic
identification as defined by Article 3 of
Regulation (EU) No 910/2014 of the European
Parliament and of the Council1a;
(c)
the bank account details of the
business user, where the business user is a
natural person;
(d)
where the business user is registered
in a trade register or similar public register,
the trade register in which the business user
is registered, and its registration number or
equivalent means of identification in that
register;
2.
The provider of intermediary services
shall, upon receiving that information and
until the end of the contractual relationship,
make reasonable efforts to assess whether
the information referred to in points (a) and
(d) of paragraph 1 is reliable and up-to-date
through the use of any freely accessible
official online database or online interface
made available by a Member States or the
Union or through requests to the business
user to provide supporting documents from
reliable sources.
3.
Where the provider of intermediary
services obtains indications that any item of
information referred to in paragraph 1
obtained from the business users concerned is
inaccurate or incomplete, that provider of
intermediary services shall request the
business user to correct the information in so
far as necessary to ensure that all
information is accurate and complete,
without delay or within the time period set by
Union and national law.
Where the business user fails to correct or
complete that information, the provider of
intermediary services shall suspend the
provision of its service to the business user
until the request is complied with.
4.
The providers of intermediary services
shal store the information obtained pursuant
to paragraph 1 and 2 in a secure manner for
the duration of their contractual relationship
with the business user concerned. They shall
subsequently delete the information.
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5.
Without prejudice to paragraph 2, the
providers of intermediary services shall only
disclose the information to third parties
where so required in accordance with the
applicable law, including the orders referred
to in Article 9 and any order issued by
Member States’ competent authorities or the
Commission for the performance of their
tasks under this Regulation.
6.
The providers of intermediary services
shal make the information referred to in
points (a) and (d) of paragraph 1 available to
the recipients of the service, in a clear, easily
accessible and comprehensible manner.
________________
1a Regulation (EU) No 910/2014 of the
European Parliament and of the Council of 23
July 2014 on electronic identification and
trust services for electronic transactions in
the internal market and repealing Directive
1999/93/EC (OJ L 257, 28.8.2014, p. 73).
Justification
The narrow approach of limiting Know Your Business Customers (KYBC) provisions to online marketplaces is a missed
opportunity to ensure that the DSA provides a meaningful tool to address the broad range of illegal activities online.
KYBC obligations should apply to all intermediary service providers. A business cannot operate online without being
hosted, or without advertisement and/or payment services. Requiring providers of intermediary services, having a
direct relationship with the businesses concerned, to know the identity of their business customers would
automatically reduce illegal content online in a minimally burdensome way.
A broad KYBC is clearly in line with the express objectives of the DSA, namely ensuring a safe, predictable, and trusted
online environment for businesses and consumers. KYBC duties wil impose minimal burdens on legitimate
businesses, all of which are easily identifiable, and consumers will benefit from an online environment where
business operators are easily identifiable.
Subsidiarity
Recital 26
Text proposed by the Commission
Amendment
(26)
Whilst the rules in Chapter I of this
(26)
Whilst the rules in Chapter I of this
Regulation concentrate on the exemption
Regulation concentrate on the exemption
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from liability of providers of intermediary
from liability of providers of intermediary
services, it is important to recal that, despite
services, it is important to recal that, despite
the general y important role played by those
the general y important role played by those
providers, the problem of illegal content and
providers, the problem of illegal content and
activities online should not be dealt with by
activities online should not be dealt with by
solely focusing on their liability and
solely focusing on their liability and
responsibilities.
Where possible, third parties
responsibilities.
In many cases, providers of
affected by il egal content transmitted or
intermediary services
are best placed to solve
stored online should attempt to resolve
the problem of illegal content
and activities
conflicts relating to such content without
by removing or blocking access to such
involving the providers of intermediary
content, particularly at the request of third
services
in question. Recipients of the service
parties affected by the illegal content
should be held liable, where the applicable
transmitted or stored online.
rules of Union and national law determining
such liability so provide, for the illegal content
that they provide and may disseminate
through intermediary services. Where
appropriate, other actors, such as group
moderators in closed online environments, in
particular in the case of large groups, should
also help to avoid the spread of illegal content
online, in accordance with the applicable law.
Furthermore, where it is necessary to involve
information society services providers,
including providers of intermediary services,
any requests or orders for such involvement
should, as a general rule, be directed to the
actor that has the technical and operational
ability to act against specific items of illegal
content, so as to prevent and minimise any
possible negative effects for the availability
and accessibility of information that is not
illegal content.
Recipients of the service should be held liable,
where the applicable rules of Union and
national law determining such liability so
provide, for the il egal content that they
provide and may disseminate through
intermediary services. Where appropriate,
other actors, such as group moderators in
closed online environments, in particular in
the case of large groups, should also help to
avoid the spread of il egal content online, in
accordance with the applicable law.
Furthermore, where it is necessary to involve
information society services providers,
including providers of intermediary services,
any requests or orders for such involvement
should, as a general rule, be directed to the
actor that has the technical and operational
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ability to act against specific items of illegal
content, so as to prevent and minimise any
possible negative effects for the availability
and accessibility of information that is not
illegal content.
Parties with the technical and operational
capacity to take action against il egal content
must therefore ensure that third parties can
identify them easily and contact them in
order to combat il egal content.
Justification
Recital 26 unhelpfully states that where possible, third parties affected by illegal content transmitted or stored online
should attempt to resolve conflicts relating to such content without involving the providers of intermediary services
in question. However, this disregards the fact that intermediaries are often best placed to address illegal content in
an effective manner.
Search
A single webpage or website may include elements that qualify differently between ‘mere conduit’, ‘caching’ or
hosting services and the rules for exemptions from liability should apply to each accordingly.”
[IN FAVOUR]
For example, a search engine could act solely as a ‘caching’ service as to information included in the results of an
inquiry. Elements displayed alongside those results, such as online advertisements, would however still qualify as a
hosting service.
Justification
The DSA should not grant new liability privileges. Enhancing the accountability of search engines can be achieved
through the introduction of effective due diligence obligations, not by granting them a broad and unjustified “safe
harbour”. Recital 27a suggests the possible qualification of search engines as “caching”. Categorising search engines
as “caching” providers would remove the incentive for search engines to fight against illegal content online.
Commission Guidelines
Request a split vote on amendment 106 on Article 1a (Scope)
1st part:
Text as a whole excluding “4. By [12 months after… in Article 1a(3)”
[IN FAVOUR]
2nd part:
These words
[AGAINST]
Justification
Article 1a calls for the publication of guidelines by the Commission to clarify any potential conflict between this
Regulation and other Directives and Regulations. This approach aiming at addressing the lex specialis status in
relation to the DSA lex generalis will cause more problems than it could resolve. A large amount of interpretation
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will be necessary. This is not the role of the Commission, and which could put at stake existing current Union law
legislation and create legal uncertainty.
Notice and Action
Request a separate vote on amendment 207 on Article 14 (3a)
[AGAINST]
Justification
The DSA aims to increase safety and trust online by mandating online services to remove illegal content as soon as
they become aware of illegal content, notably through a notice. Article 14(3a) directly contradicts this obligation and
creates legal uncertainty by allowing illegal content to remain online despite having been properly notified to the
online service. The DSA would therefore fail effectively to protect victims of il egal content, whether European
companies or end-users, from malicious actors online or non-diligent online services.
Signatories
6
