White & Case LLP | Rory Hishon, Jenna Rennie, Joseph Carroll and Ben Harris
Claims
What claims relating to online safety are available and most common in your jurisdiction?
Article 54 of the Digital Services Act (DSA) provides that private litigants have the right to bring claims for compensation in respect of any damage or loss suffered due to an infringement of the DSA. Any such claim would be brought in individual member states.
Article 21 DSA also provides for a non-binding out-of-court dispute settlement system, where people affected by an online platform provider’s decision regarding whether to restrict specific items of content, or impose certain other restrictions referred to in article 20, can seek to resolve the dispute. A number of dispute settlement bodies have been certified for this purpose.Procedure
What is the procedure for claimants to bring actions relating to online safety in your jurisdiction?
Claimants may initiate proceedings before the competent national courts in their member state. This typically involves submitting a claim or complaint that details the alleged non-compliance by the provider, provides relevant evidence, and specifies the remedy sought.
Claimants may alternatively use the out-of-court dispute settlement mechanism provided for under the DSA. This allows users to refer disputes with providers of online platforms – such as disagreements over content moderation decisions or access restrictions – to a certified, independent and impartial dispute settlement body. The process is designed to be accessible and efficient, and providers are required to cooperate with the dispute settlement body. Each dispute settlement body publishes its own rules of procedure. The decisions of these bodies are non-binding, but claimants retain the right to pursue the matter further through the courts if they are dissatisfied with the outcome. This aims to offer claimants a quicker and less formal alternative to court proceedings.Remedies
What interim and substantive remedies may be imposed in relation to online safety claims?
Available remedies will depend on the member states’ national courts. However, article 54 provides that users shall have a right to seek compensation in respect of any damage or loss suffered due to an infringement.Defences and exemptions
Does your jurisdiction provide any defences or exemptions from liability for online safety claims? If so, how do they operate and which online services providers may avail of them?
The safe harbour exemptions in the DSA, which stem from the EU E-Commerce Directive, generally protect intermediary service providers from liability for third-party content, provided that they act promptly to remove illegal material once they have actual knowledge of it, or awareness of facts or circumstances from which the illegality is apparent. The DSA also maintains the prohibition on general monitoring obligations, meaning providers are not required to proactively monitor all user activity or content on their services.
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This article first appeared on Lexology | Source
