The Digital Services Act (DSA) is an EU law that aims to control and restrict the distribution of illegal content on digital platforms.
It is aimed at various online companies such as search engines, platform providers and web hosting companies.
Liability of platforms according to Art. 6 DSA
According to Art. 6 DSA, platforms such as YouTube are only liable for infringements of their users’ rights if the infringement has been reported to the platform with sufficient specificity.
This means that a general complaint about an alleged infringement of personal rights without specifying the exact URL of the offending video is not sufficient to establish the platform’s liability.
In its ruling of 23.07.2024 (case no. 3 U 2469/23), the Higher Regional Court of Nuremberg clarified that the report of an infringement must be formulated in such concrete terms that the service provider can easily recognize which specific content is meant.
Otherwise, the notification is not sufficient to establish liability on the part of the service provider.
Furthermore, the court emphasized that the decision on the illegality of a reported content is generally the responsibility of the service provider.
The service provider must carefully examine the report and, if necessary, obtain further information before removing or blocking the content.
According to the Higher Regional Court of Nuremberg, the need for protection of the person concerned must not be disregarded when weighing up the interests involved in determining the effort required to review the content.
The extent to which the data subject is dependent on the information that the service provider could obtain from the user as part of a “hearing procedure” in order to enforce their claim must be taken into account.
Importance for influencers and creators
The DSA can help influencers and creators who may not be providing their contact details correctly.
Under the DSA, platforms such as YouTube are obliged to provide reporting procedures for illegal content and to remove reported content quickly or block access.
However, creators must also be aware that repeated violations of the law on YouTube can lead to so-called “strikes”.
Strikes are warnings that can lead to the loss of certain functions or even the blocking of the channel.
Many creators fear strikes as they jeopardize their reach and revenue opportunities.
Conclusion
The ruling of the Higher Regional Court of Nuremberg specifies the liability regulation of Art. 6 DSA.
Platforms such as YouTube are only liable if there is a sufficiently concrete report of an infringement.
The decision on the illegality ultimately lies with the service provider.
The need for protection of the person concerned must also be taken into account.
In addition, the host provider’s secondary burden of proof does not apply if the facts complained of originate from the sphere of the data subject or if the data subject can reasonably be expected to clarify the facts themselves.
Influencers and creators can benefit from the DSA’s reporting procedure, but must also be aware of the consequences of repeated infringements in the form of strikes.
Overall, the DSA creates new obligations for online platforms, the practical implementation of which will keep the courts busy for some time to come.
