To Define Is Just to Define

Intermediary services allow users to share content worldwide on the internet. This promotes global communication but it also enables users to distribute illegal content. The laws of the EU Member States vary greatly when it comes to what content they consider to be illegal, especially with regard to sociopolitical issues such as hate speech. Thus, it is important which national law applies in cross-border cases concerning online content. Ultimately, this question is closely linked to the broader reshuffling of power in the digital sphere: will it be actual ‘law’ that platforms enforce online or norms made by platforms themselves? So far, the law of 27 Member States plus the EU itself remains utterly chaotic compared to the more uniform Terms of Service (ToS) of the internet giants.

The new EU Digital Services Act (DSA) aims to facilitate and harmonise the moderation of illegal content by the service providers, e.g. Facebook, Instagram, or TikTok, especially with the rules on notice and action mechanisms (see Article 16 DSA). Through these mechanisms, users are able to notify the service providers of illegal content. Article 3 lit. h DSA defines illegal content. We will get to that in a second. For now, it is crucial to note that likely most to all cases concerning online speech in the EU can be construed as being cross-border cases. Servers can be placed anywhere, the sites are run by an LLC in Ireland or another inner-European tax haven, and users scattered all over the continent. But which content is illegal? And, crucially, which Member State decides this? What about, for example, France’s famously strict libel laws or the rigidly conservative stance on abortion in Malta? Does online-communication relating to these issues – especially with cross-cutting norms like libel – become illegal in the whole of the EU?

Therefore, hopes are that Article 3 lit. h DSA clarifies which national law the service providers should apply when moderating content to determine whether it is illegal. However, from my point of view Article 3 lit. h DSA does not solve the conflict of laws.

Definition of illegal content in the DSA

Article 3 lit. h DSA contains a broad and rather vague definition of illegal content, only in terms of its compliance (or not) with Union or Member State laws:

“any information that, (…), is not in compliance with Union law or the law of any Member State which is in compliance with Union law, irrespective of the precise subject matter or nature of that law”.

The following example illustrates the importance of determining which national Member State law the service provider applies when moderation content:

“User A posts a comment about user B on Facebook. User B notifies Facebook of the comment because she considers it to be defamatory. User A is based in France, user B in Germany. Facebook has its central administration in Ireland. According to Hungarian and Spanish law the comment is indeed illegal but not according to German, French or Irish law.”

Which national law or laws can or should Facebook apply to assess whether the comment is illegal? Can it be sufficient that the comment is illegal according to Hungarian and Spanish law? The answers to these questions depend partly on the nature and character of Article 3 lit. h DSA.

Changes of the definition in the course of the legislative procedure

At first glance it seems absurd to even consider applying Hungarian or Spanish law, as the example has no connection to Hungary or Spain. The background of the discussion is a small change of the definition of illegal content during the DSA Trilogue procedure:

In some language versions of the DSA, the definition of illegal content changed. In the original draft of the European Commission it was: „any information, which, (…) is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law”. The most interesting change from this definition to the final definition is the change from “law of a Member State” to “law of any Member State”.

The Council of the European Union (Council) used “law of any Member State” in its draft. Because the Council didn’t explain the draft, we can only speculate about its intentions. Consequently, the Council also opted for the change from “a” to “any” in the Trilogue. The 4C tables of the negotiations on 31st March 2022 and 22nd April 2022 mention that the Council insists on its text with “any Member State” and “which is in compliance with Union law”. The provisional agreement shows that the Council prevailed with this demand.

There was a similar change in the definition of illegal content (or „contenido ilícito“) in the Spanish version (un Estado miembro“ in „cualquier Estado miembro“) but – interestingly enough – not in the German or French version of the DSA.

The change from “a Member State” to “any Member States” underlines that service providers have to comply with the law of all Member States and might apply the law of all Member States when they moderate content. However, there are two possible understandings of this: “Any” could refer to the existing conflict-of-law rules. They can theoretically – depending on the users and the constellation in question – lead to the law of any of the 27 Member States being applicable. But the interpretation of “any” could also lead to the conclusion that it is sufficient that a content is illegal according to one, for that matter any of the national laws of Member States, irrespective of the conflict-of-law rules or the jurisdiction.

To apply Hungarian or Spanish law in the example illustrates, however, that it cannot be sufficient that a content is illegal according to one rather random national Member State law irrespective of the conflict-of-law rules.

Conflict-of-laws character of the definition of illegal content

From my point of view, the solution lies within the conflict-of-law rules. The question whether service providers can apply the law of any Member State to illegal content, irrespective of the conflict-of-law rules, comes down to the question of the conflict-of-laws character of the definition in Article 3 lit. h DSA.

Article 2 para. 4 lit. h DSA states that the conflict-of-law rules should remain untouched by the DSA. This in itself is a strong argument against the conflict-of-laws character of the definition. However, it does not rule out the possibility that the European legislator nevertheless created – somewhat invertedly – a conflict-of-law rule.

Features of a conflict-of-law rule in Article 3 lit. h DSA

Article 3 lit. h DSA does not have the features of a classic conflict-of-law rule, neither with view to the legal consequence nor with view to the factual criteria.

In general, most conflict-of-law rules clearly determine that a particular legal system is applicable as their legal consequence. For instance, Article 4 para. 1 Rome I-Regulation reads: “the law governing (…) shall be determined as follows” and Article 4 para. 1 Rome II-Regulation states: “the law applicable to (…) shall be the law of the country in which (…)”. In contrast, Article 3 lit. h DSA uses the phrase that the information “is not in compliance with (…)” and does therefore not directly refer to the application of a particular legal system.

Furthermore, conflict-of-law rules generally have two factual criteria: The first one is the subject matter. This is the legal relationship or question which the conflict-of-law rule links to a specific law. A simple example is a purchase contract between two parties which are based in different countries. The purchase contract would be the subject matter which is linked to a national law, for instance to determine whether it is valid. Regarding Article 3 lit. h DSA, the subject matter could be the content or information.

The second factual criteria of conflict-of-law rules is the connecting factor. This criterion connects the subject matter to a specific legal system through one or several factual characteristics. In the purchase contract-example it could be the base of the seller. This would link the purchase contract to the law of the Member State in which the seller is based. Coming back to Article 3 lit. h DSA, in this definition we cannot determine a factual characteristic which could serve as a link to a specific legal system. Article 3 lit. h DSA does not contain any further factual criteria regarding the law of a or any Member State.

Article 3 lit. h DSA as cumulative linkage?

Thus, Article 3 lit. h DSA does not have the features of a classic conflict-of-law rule, as the connecting factor is missing. In exceptional cases only, conflict-of-law rules have more than one connecting factor, leading to multiple linkage. However, the absence of any connecting factor and a missing sufficient justification speaks against considering Article 3 lit. h DSA as a form of so called cumulative linkage. Not only does the legal consequence Article 3 lit. h DSA could have otherwise – the application of the law of all Member States at the same time – seem impractical and absurd, it would also be against the concepts in private international law.

Cumulative linkage appears if a conflict-of-law rule declares two or more legal systems applicable to a specific legal relationship at the same time. In the previous example of the purchase contract, it would be cumulative linkage to make the validity of the contract subject to the law at the base of the seller and the law at the base of the buyer. The example already shows that cumulative linkage can lead to subjective rights being minimised. This also applies in our DSA-example: Cumulative linkage would lead to one of the strictest legal systems (here: Hungarian or Spanish law) being relevant for user A as the person posting the comment – and for that matter making use of his freedom of expression.

A possible reason or justification for cumulative linkage through Article 3 lit. h DSA could be that user A knew that the content will generally be available worldwide and could therefore be linked to any place. One could argue that he therefore took into account that Facebook might apply any of the Member States laws.

However, regarding Article 3 lit. h DSA, a clear connecting factor is missing. If the person affected by the comment (user B) could freely choose the applicable law, this could lead to the application of a legal system without any connection to the legal relationship, as is the case with the aforementioned Hungarian or Spanish law. This can violate the ordre public. That the comment is available worldwide is not sufficient to claim a cumulative linkage, which has such far reaching consequences. A linkage without further reference points would indeed lead to the strictest law being relevant and therefore to the most restrictive interpretation of the freedom of expression throughout Europe. The application of the laws of all or the strictest Member States at the same time could have a deterrent effect on expressions of opinion of any kind.

Furthermore, to apply the laws of all Member States contrasts with the leading principle of the closest link in private international law. If the legal systems of all Member States are relevant, any connection is dispensed with. Moreover, the users could not foresee the applicable law, leading to problems in terms of legal certainty and predictability.

Intended purpose of Article 3 lit. h DSA

If Article 3 lit. h DSA does not have the purpose of a conflict-of-law rule – what is its purpose? From my point of view, it is a definition which should clarify the broad scope of the definition and the DSA in general, the application to different sorts of illegal content and the concept “what is illegal offline should be illegal online” (see reason 12 of the DSA). It does, however, not have any material effect. It is only a definition, to define is just to define.

The answer the Council gave to my request regarding the change of the definition confirms this interpretation. In its answer, the Council itself points out that the applicable law might vary, depending on the particular case and constellation. Thus, it supports the first possible interpretation: The application of the existing conflict-of-law rules can lead to any Member State law.

Conclusion and broader context

The DSA harmonises content moderation but gives no answer to the question of which national law is relevant in determining whether content is illegal or not. Coming back to the questions at the beginning – the DSA Transparency Database Dashboard shows that service providers indeed rather use their own ToS instead of national laws, when moderating content. The difficulties in determining the applicable law might be one reason for this. To apply the existing conflict-of-law rules to illegal content is difficult because of the interplay and tension between the only partly harmonized conflict-of-law rules (for instance regarding personality rights infringements), the territorial scope of judicial orders and the country-of-origin principle stemming from the eCommerce Directive. Service providers might be able to apply their ToS but the Digital Services Coordinators (DSC), the out-of-court dispute settlement bodies and the national courts also have to decide whether content is illegal according to the DSA. In addition, it might be questionable whether the EU will allow service provider to use their ToS so extensively.