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