In the context of the Digital Services Act, the Commission intends to revise the Directive on electronic commerce. This 20-year-old legislative framework imperfectly responds to new digital behaviours and uses as well as the emergence of new and powerful economic players. AFEP publishes its position on the DSA as contribution to the Commission public consultation on this proposal.
- AFEP wishes for an update of this text to strengthen its legal certainty while preserving some of its most structuring principles. For this purpose, AFEP supports the drafting of a regulation to harmonise these new provisions and to reinforce consumer confidence within the single market, which must be equivalent to that known in physical trade.
- This review should be an opportunity to clarify the conditions that must be met by digital players to qualify as active or passive hosts. The criteria from European case-law allowing to define an active host should be integrated into the future legislative proposal.
- Therefore, the responsibility of active hosts would be determined not for the existence of illegal content on their websites, but for the lack of implementation of a vigilance plan, including ex-ante control measures and responsiveness after notification. In the event of litigation, it would be up to the judge to assess the implementation of this vigilance plan regarding the content in question.