The DSA proposal and Spain
Clémént Perarnaud
(Brussels School of Governance, BSOG-VUB)
Disclaimer: Dear reader, please note that this commentary was published before the DSA was finalised and is therefore based on an outdated version of the DSA draft proposal. The DSA’s final text, which can be here, differs in numerous ways including a revised numbering for many of its articles.
Since the first rounds of negotiations on the DSA proposal, Spain has been an active member state in the Council of the EU at the working group level. Spain is among the countries which shared a position paper to the rest of the delegations in the Council and repeatedly provided written comments on the compromise proposals successively drafted by the Portuguese and Slovenian presidencies in 2021.
As evidenced by other recent EU negotiations, Spain is known for being supportive of an interventionist approach in relation to platform regulation, notably after having supported the introduction of new obligations for over-the-top (OTT) communication services in the context of the EU telecom reform, or more stringent obligations for Internet platforms as part of the recent directive on copyright in the Digital Single Market (DSM)[1].
Spain has positioned itself[2] on the side of member states such as France and Germany in the context of the DSA negotiations. Spain indeed agrees with the main objectives behind the reform of the E-Commerce Directive (2000/31) and its ambition to upgrade the rules governing digital services. Yet, Spain has also signalled the need for improving and strengthening a number of elements of the proposal, including on intermediary liability, transparency, scope of application and provisions related to stay-down orders.
This article briefly presents (1) the main elements of the Spanish position on the DSA proposal, followed by (2) an analysis of the various amendments proposed by Spanish MEPs in the European Parliament, and identifies (3) the relevant legal and policy developments at the national level to underline the main determinants of the Spanish position in the DSA negotiations.
1/ The position of Spain on the DSA proposal
Though generally supportive of the DSA proposal, Spain has voiced concerns with a number of its key aspects, starting with its scope.
Regarding the scope of the services covered by the proposed legislation, Spain is in favour of expanding the definition in order to cover for instance suppliers of short-term tourist rental accommodation (in the definition of ‘trader’ and ‘intermediary services’), as well as private messaging services (such as Telegram). In this sense, Spain has highlighted the need to take into account the most recent rulings of the Court of Justice of the European (CJEU), notably on Uberpop and Airbnb in this respect. Spain is also among the member states that are critical of the exclusion of search engines from the current scope. In addition, Spain strongly supports Article 1(3) of the DSA proposal, which states that the regulation applies to all intermediary services that provide their services to users established in the EU, regardless of the place of establishment of the service provider.
Regarding intermediary liability, Spain is in favour of increasing liabilities for intermediaries in general, as stated by the lead attaché for the Spanish Permanent representation to the EU during a recent seminar (April 2021). Spain agrees with the reform and supports the DSA in general, but believes that this legislation could be improved in relation to obligations and liabilities, by broadening their scope. Spain has also argued in Council working groups in favour of the need to guarantee legal certainty and establish objective criteria based on the jurisprudence of the CJEU (including the L’Oreal/eBay judgment). These criteria allow discerning when an intermediary acquires an active role of such a kind as to give it knowledge or control over the information, and consequently, lose the liability exemption.
The continued prohibition of a general monitoring obligation is a controversial issue among member states. Spain supports the prohibition of general monitoring as it could lead to the excessive and indiscriminate removal of content and affect fundamental rights of users. However, Spain has stated that this obligation should not interfere with specific monitoring obligations or orders from competent authorities. By specific monitoring obligations, Spain refers for instance to the recent terrorist online content Regulation adopted at the European level.
Spain strongly supports the possibility to issue an order to act against a piece of illegal content and further reappearances of the same content, without the need to receive a new order from the competent authority. This is in line with the recent CJEU judgment C-18/18 (Eva Glawischnig-Piesczek / Facebook case) which indicates that the ECD (2000/31) does prevent a court of a member states from being able to oblige a provider of data hosting services to delete content that is similar to that of an information previously declared illegal.
In July 2021, Spain also shared a proposal on the protection of minors in the DSA. Though this document is not public, it is known to include wordings related to the notification of suspicion of criminal offense. Recent draft compromises presented by the Slovenian presidency in September 2021 show a number of amendments connected to the issue of the protection of minors (see for instance Article 27), which may derive from this position paper.
In relation to Article 9 DSA, related to orders to provide information, Spain is in favour of establishing a deadline for intermediaries to inform authorities. Spain supports in particular a deadline that would depend on the severity of the illegal content, ranging from 24 to 72 hours.
Finally, Spain has voiced in multiple occasions that the DSA proposal should be strengthened by modifying the provisions related to the “know your business customer” principle. For instance, the Spanish representative in the Competitiveness Council in May 2021 expressed its support to reinforcing this approach for online marketplaces.
2/ Spanish MEPs and DSA negotiations
The convergence and divergence of Spanish MEPs’ positions in the European Parliament are indicative of the salience of certain issues for Spain in general, but also of the existing divisions between Spanish political parties regarding the DSA proposal.
Indeed, a number of prominent Spanish MEPs[3] have been active in their respective EP committees, though it needs to be emphasized that no Spanish MEPs is in charge of (shadow) rapporteurship, or of drafting an EP committee’s opinion in this process.
A close analysis of the amendments proposals submitted by a number of specific Spanish MEPs (including Pilar del Castillo Vera, Clara Aguilera, Lina Gálvez Muñoz and Adrián Vázquez) shows marked differences between them, and gives relevant insights on the position adopted by representatives of the ruling political parties, the Socialist Workers’ Party (PSOE), in the European Parliament.
In the IMCO committee, Clara Aguilera and Adriana Maldonado López (S&D) appear largely aligned with the DSA rapporteur Christel Schaldemose, arguing in favour of a 24 hours limit to remove or disable access to illegal content that could cause serious harms, prevent so-called ‘dark patterns’ on online interfaces, and introduce an internal complaint-handling system inspired by the UK Online Safety Bill. On the contrary, Pilar del Castillo Vera (EPP) is in line with proposals supported by other prominent liberal MEPs such as Andreas Schwab and Axel Voss, to limit administrative costs and legal uncertainty for SMEs, prevent the over-removal of content, refrain from imposing additional transparency reporting obligations on online platforms and limit the territorial scope of orders for removing content.
In the ITRE committee, another PSOE MEP, Lina Gálvez Muñoz (S&D), has argued that exemptions from liability should not be available to providers of intermediary services that do not comply with due diligence obligations. Gálvez Muñoz also supported that services deeper in the internet stack acting as online intermediaries could be required to take proportionate actions where the customer fails to remove illegal content unless technically impracticable. In line with public stances taken by the Spanish government, Gálvez Muñoz has also supported the reinforcement of the KYBC principle for marketplaces and extend its use to other intermediaries (advertising services, web hosting, domain name registrations).
While Spanish actors appear active at the EU level, the following section explores the main recent legal and policy developments at the domestic level which contributed to the shaping of the national position on the DSA proposal.
3/ Recent legal and political developments in Spain
The Spanish government is led by Pedro Sánchez, the leader of the socialist PSOE since June 2018. Since 2020, the new Spanish government consists in a coalition between the PSOE and the left-wing alliance Unidas Podemos.
Both parties do not appear significantly divided in relation to the regulation of online content. For instance, in 2020, Unidas Podemos proposed a resolution in the Spanish Congress for the adoption of “measures aimed at the Prevention of the Propagation of Hate Speech in the Digital Space” In line with the position of the PSOE, this resolution included a provision stating that ICT providers should have “24 hours to remove or disable content inciting hatred and violence from the web; or one hour when the victims are minors”.
Interestingly, the Spanish Ministry of economy and competitiveness has recently launched a process to hire more experts in order to follow and engage with the DSA negotiations. This development both indicates the limited current resources at the disposal of the Spanish government to address the many issues covered by the DSA, but also reflects the increased political significance of this legislative dossier in Madrid.
At the political level, a range of legislations and decrees have recently been adopted by Spanish government and lawmakers. They provide good analytical tools to understand the current position of Spain in the DSA negotiations.
In relation to disinformation and hate speech, the Spanish Government indeed approved in 2020 the Ministerial Order PCM/1030/2020 establishing the National Procedure Against Disinformation, that updates the existing national system to prevent, detect and respond to disinformation campaigns and establish coordination structures. In response to the concerns raised by civil society groups in Spain and beyond regarding this procedure, the Spanish government argued that this order allows for the participation of Spain to the instruments set up by the 2018 European Action Plan against Disinformation. In addition, a new National Strategy against Disinformation is currently being drafted by Spanish authorities.
This followed the adoption in October 2019 of the Digital Royal Decree 14/2019. This decree had widened the powers of the Spanish government, through its Ministry of Economy and Enterprise, to intervene, suspend or control electronic communication networks and services on grounds of national security, public security and public order. Critics of the decree underlined that such decision could be adopted without any judicial review.
More recently, in April 2021, Spain has adopted a law aimed at protecting children and adolescents against violence. This law includes provisions to guarantee the rights of children and adolescents against all forms of violence, including online harassment. In its article 19 on the duty to report illegal content on the Internet, the law states that “any person, whether natural or legal, who notices the existence of content available on the Internet that constitutes a form of violence against any child or adolescent, is obliged to report it to the competent authority and, if the facts could constitute a crime, to the Security Forces and Corps, to the Public Prosecutor’s Office or to the judicial authority”.
A number of other legal and policy developments at the national level should also be recognised in relation to the regulation of Internet platforms, the issue of intermediary liability and algorithmic transparency.
In July 2020, the Spanish ministry of Economy published the Digital Spain 2025 Plan, which updates the Spanish Digital Agenda from 2013. This roadmap includes nearly fifty measures intended to promote the country’s digital transformation process, including through the enactment of new legislations on the telecommunications sector. In relation to the regulation of online content, the directive on copyright in the DSM is expected to be transposed into national law in the coming months, as the Spanish government asked the European Commission in June 2021 for an additional period of six months to adopt this legislation. Finally, in June 2021, the Spanish Congress approved the Royal Decree Law 9/2021, commonly known as the “Riders Law”. This law requires online platforms to recognize delivery riders as workers and automatically grant them rights, but also share with workers’ councils the algorithms that “affect decision-making that may affect working conditions, access to and maintenance of employment, including profiling”. As evidenced by Social Europe, online platforms will now have to make available to trade unions the algorithms they use in to the management of their workers.
In addition to the Spanish government and Congress, a range of national actors have also contributed to the ongoing debates around the DSA negotiations. The Spanish digital rights group Xnet shared a position paper on the DSA proposal, calling for the protection of the freedom of expression online, strengthening privacy rights and more transparency for recommender systems. The Spanish competition authority, the National Commission on Markets and Competition (CNMC in Spanish), also released a position paper on the DSA and Digital Markets Act (DMA) warning about the risks of over-regulating and creating legal uncertainty. Telefonica, one of the main telecom operators in Spain, has also recently shared its position, supporting in particular a strong safe harbour principle for digital services that have ‘have no knowledge, control or management activity over the content their users upload and exchange’.
[1] For more, see for instance: Perarnaud, C. (2021). A step back to look ahead: mapping coalitions on data flows and platform regulation in the Council of the EU (2016-2019). Internet Policy Review, 10(2). https://doi.org/10.14763/2021.2.1566
[2] Spain is not part of the coalition composed by Czech Republic, Estonia, Finland, Ireland, Luxembourg or Sweden, which advocates for more limited liabilities for intermediaries for instance.
[3] The Spanish MEPs particularly active include for instance for the European People’s Party (EPP) – Pablo Arias Echeverría (IMCO), Pilar Del Castillo (IMCO), Esteban Gonzalez Pons (JURI). Javier Zarzalejos (JURI) -, for the group Socialist & Democrats – Adriana Maldonado López (IMCO), Clara Aguilera (IMCO), Lina Gálvez (ITRE), Alícia Homs Ginel (ITRE), Nicolás González Casares (ITRE) -, for Renew – Adrián Vázquez (JURI), and as non-attached member – Clara Ponsatí Obiols (IMCO)
Clément Perarnaud
This contribution is part of an independent research project on mapping the position of and situation in the Member States with respect to the Digital Services Act (DSA), for which the DSA Observatory has received a (partial) financial contribution from our partner in this project, EDRi.