The European Union's Digital Services Act and Secondary Criminal Liability for Online Platform Providers A Missed Opportunity for Fair Criminal Accountability?

The Digital Services Act (DSA) represents a watershed moment in the European Union’s efforts to harmonise regulations for online intermediaries, including online platforms, while also tackling harmful online content. The present article analyses the DSA’s impact on the assignment of criminal liability to online platform providers and considers whether the DSA upholds principles of criminal law. The DSA sets out conditional exemptions from liability for online platforms providers, introduces due diligence obligations for platform providers, and establishes rules for the Regulation’s implementation and enforcement. While the DSA does not criminalise any conduct, it will impact the way in which Member States assign criminal liability to online platform providers for their involvement in criminal acts. Most notably, the conditional exemption may prevent platform providers from being held liable for assisting users’ crimes by storing information, potentially affecting the application of criminal secondary modes of liability under the national laws of Member States. At the same time, the DSA requires platform providers to undertake due diligence obligations that may give rise to knowledge that can result in a loss of the exemption and possibly trigger criminal liability. Given the DSA’s impacts on criminal liability, it is necessary to analyse the Regulation from a criminal law perspective. This analysis raises concerns that the DSA undermines the principle of legality, hampers the development of national criminal justice systems, pushes the boundaries of EU competencies on criminal law, violates the principle of equality before the law, fails to consider the rights of victims, and fails to address serious crime and high-risk activities.