In July 2019, Netzpolitik and others leaked an internal document by DG Connect that outlines the European Commission’s thoughts on an update of the E-Commerce Directive. Based on this document, it seems that the domain name system and its actors will be prominently addressed in the Ursula von der Leyen’s Commission-cycle from 2019 to 2025.

Towards a Digital Services Act

During previous cycles, the Commission has been rather reluctant to open Pandora’s box and worked under a “sector and problem-specific approach.” With its flexible horizontal framework, the E-Commerce Directive (ECD) has served remarkably well for almost two decades.

The leaked note display’s the Commission’s emerging hunger for replacing the ECD with a Digital Services Act or a Digital Service Code for Europe (preparations appear to be, in fact, well under way). The 19-years old horizontal regulatory framework would undergo a REFIT, and the note addresses several areas of intervention, such as content moderation practices in relation to harmful content, rules for online advertising services, service interoperability and more (criticism e.g. here).

Updated scope of the ECD

The note points at “[o]utdated rules and significant regulatory gaps for today’s digital services.” The note refers to certain grey areas regarding information society services.

As you might remember, the ECD does not specifically mention the DNS or its actors in relation to the liability exemption rules in Articles 12-15. The note specifically mentions “a variety of online intermediaries such as Content Delivery Networks or Domain Name Registrars and Registries are not sure what the legal regime is under which they operate.”

Intermediary liability 2.0 – registries and registrars to be directly addressed

Besides a continuation of the—worrying—tendency towards relying on proactive filtering by private actors (which has been prominently featured in the recently adopted DSM Directive), the note explicitly points towards the DNS.

In the context of intermediary liability, it states that

“In some instances, this can amount to codifying existing case-law (e.g. for search engines or wifi hotspots), while in other cases a clarification of its application to collaborative economy services, cloud services, content delivery networks, domain name services, etc is necessary.”

The note also contains some insight as to what adjustments are envisioned to the current regime:

”(...) the concept of active/passive hosts would be replaced by more appropriate concepts reflecting the technical reality of today’s services, building rather on notions such as editorial functions, actual knowledge and the degree of control. (...).”

I have been looking at unlawful website content and the role of domain registries in an ongoing research project. In the article “On domain registries and unlawful website content” I argue that the liability exemption regime is unclear in relation to domain registries (the question of intermediary liability as such, of course, is up to the national regimes).

Given the tendency to involve any actor that can make access to content more cumbersome (both via regulatory intervention and private industry facilitation, e.g. via trusted notifiers), this is problematic. In my research, I argue for a teleological application of Article 12 ECD on the activities of domain registries.

Whether one agrees with the findings of my research or not, we are likely to see an increased interest in the role of the DNS and content on the regulatory agenda in Europe rather sooner than later.