The Liability of Internet Service Providers in the Proposed Digital Services Act

The Digital Services Act, in the part where it aims to define the provider’s liability for illegal activity or illegal content stored at the request of a recipient of the hosting service, ends up providing greater protection for the provider than the Electronic Commerce Directive, reducing the doubts regarding the circumstances that make the knowledge of such content actual. Only reports with certain characteristics, which are explicitly provided for, or communications from the authorities that integrate an order under Article 8, oblige the provider to remove or to disable access to the illegal content. Moreover, not only does the hosting service not have any general monitoring or active fact-finding obligations, it also has no obligation to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service, as Article 15 of Electronic Commerce Directive called for. The essay aims to show that the actual increased protection of the passive provider is only acceptable if it is compensated for by greater rigor in ruling out the possibility of the providers playing an active role in hosting