International Journal of Tourism, Travel and Hospitality Law 2023

INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW Online platforms are defined as hosting services which, at the users’ request, store and disseminate information to the public (such as online marketplaces, app stores, collaborative economy platforms and social media platforms). This clearly also includes online accommodation booking services. Online platforms will no longer be able to shift the whole burden of identifying illegal content to the persons whose rights are affected through the public availability of such information. Rather than opening the doors for the very contentious upload filters, the draft new rules require online platforms to rely on trusted flaggers, i.e., independent expert entities that review content available on the platforms and report any illegal content. Trusted flaggers are already used in practice by the major social networks,40 so the mechanism will not be a novelty, but the status of trusted flaggers will now be awarded by the Digital Services Coordinator of the Member State rather than the platforms themselves. Any takedown notices received from trusted flaggers will have to be processed and decided upon by the platform operator with priority and without delay. Furthermore, the draft Regulation introduces important new measures against the misuse of online platforms’ services. The platforms will be allowed and legally required to suspend for a reasonable time, after a prior warning, the users of their service that frequently provide manifestly illegal content, and the individuals or entities who frequently submit takedown notices or complaints that are manifestly unfounded.41 The second new category of hosting services are very large online platforms, defined as online platforms that reach at least 45 million average monthly active users (10% of the EU’s population). These will be required to perform an annual assessment of any significant systemic risks stemming from the functioning and use of their services. The assessment will need to include, among others, the risk of the dissemination of illegal content through their services.42 Following the risk assessment, very large online platforms will have to put in place reasonable, proportionate, and effective mitigation measures to address the specific systemic risks identified, such as content moderation or recommender system, limiting the display of advertisements or reinforcing the existing internal processes for the detection of systemic risks. Finally, very large online platforms will be subject, at their own expense and at least once a year, to independent audit to assess their compliance with the above requirements. 40 Communication COM(2017) 555 final, Tackling Illegal Content Online, point 6. 41 Damjan, 2021, p. 57. 42 Recital 57 of the Draft Digital Services Act. Damjan, 2021, p. 57.