Article 6 Hosting

Summary What does Article 6 of the DSA regulation say?

This article establishes the conditions under which hosting service providers are shielded from liability for content stored on behalf of their users.

It sits alongside Articles 4 and 5, which provide equivalent safe harbour protections for mere conduit and caching services respectively.

The core logic here is that a provider escapes liability so long as it is genuinely unaware of illegal content, or acts expeditiously to remove or block access to it once it becomes aware.

Importantly, the article carves out two scenarios where this protection does not apply: when the user posting content is acting under the provider's authority or control, and when an online platform presents content in a way that would lead an average consumer to believe the platform itself is the source.

Courts and administrative authorities also retain the power to order providers to act against infringements regardless of this liability shield.

Important points:

Hosting service providers are exempt from liability for stored user content provided they have no knowledge of its illegality, or remove or disable access to it expeditiously upon gaining such knowledge.
The liability shield does not apply where the content provider is acting under the authority or control of the hosting provider, or where an online platform presents content in a misleading way regarding its origin.
Judicial and administrative authorities retain the ability to require service providers to terminate or prevent an infringement, unaffected by this article.

Springlex's summary of the article is a reading aid, not a substitute for the legal text.

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that the provider:
  1. does not have actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal content is apparent; or
  2. upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the illegal content.
1. Paragraph 1 shall not apply where the recipient of the service is acting under the authority or the control of the provider.
1. Paragraph 1 shall not apply with respect to the liability under consumer protection law of online platforms that allow consumers to conclude distance contracts with traders, where such an online platform presents the specific item of information or otherwise enables the specific transaction at issue in a way that would lead an average consumer to believe that the information, or the product or service that is the object of the transaction, is provided either by the online platform itself or by a recipient of the service who is acting under its authority or control.
1. This Article shall not affect the possibility for a judicial or administrative authority, in accordance with a Member State's legal system, to require the service provider to terminate or prevent an infringement.

Relevant recitals

Recital 22 Hosting exemption conditional on expeditious removal

In order to benefit from the exemption from liability for hosting services, the provider should, upon obtaining actual knowledge or awareness of illegal activities or illegal content, act expeditiously to remove or to disable access to that content. The removal or disabling of access should be undertaken in the observance of the fundamental rights of the recipients of the service, including the right to freedom of expression and of information. The provider can obtain such actual knowledge or awareness of the illegal nature of the content, inter alia through its own-initiative investigations or through notices submitted to it by individuals or entities in accordance with this Regulation in so far as such notices are sufficiently precise and adequately substantiated to allow a diligent economic operator to reasonably identify, assess and, where appropriate, act against the allegedly illegal content. However, such actual knowledge or awareness cannot be considered to be obtained solely on the ground that that provider is aware, in a general sense, of the fact that its service is also used to store illegal content. Furthermore, the fact that the provider automatically indexes information uploaded to its service, that it has a search function or that it recommends information on the basis of the profiles or preferences of the recipients of the service is not a sufficient ground for considering that provider to have ‘specific’ knowledge of illegal activities carried out on that platform or of illegal content stored on it.

Recital 23 No exemption where recipient under provider's control

The exemption of liability should not apply where the recipient of the service is acting under the authority or the control of the provider of a hosting service. For example, where the provider of an online platform that allows consumers to conclude distance contracts with traders determines the price of the goods or services offered by the trader, it could be considered that the trader acts under the authority or control of that online platform.

Recital 24 Marketplaces presenting trader information as their own

In order to ensure the effective protection of consumers when engaging in intermediated commercial transactions online, certain providers of hosting services, namely online platforms that allow consumers to conclude distance contracts with traders, should not be able to benefit from the exemption from liability for hosting service providers established in this Regulation, in so far as those online platforms present the relevant information relating to the transactions at issue in such a way as to lead consumers to believe that that information was provided by those online platforms themselves or by traders acting under their authority or control, and that those online platforms thus have knowledge of or control over the information, even if that may in reality not be the case. Examples of such behaviour could be where an online platform fails to display clearly the identity of the trader, as required by this Regulation, where an online platform withholds the identity or contact details of the trader until after the conclusion of the contract concluded between the trader and the consumer, or where an online platform markets the product or service in its own name rather than in the name of the trader who will supply that product or service. In that regard, it should be determined objectively, on the basis of all relevant circumstances, whether the presentation could lead an average consumer to believe that the information in question was provided by the online platform itself or by traders acting under its authority or control.

Table of contents

Springlex and this text is meant purely as a documentation tool and has no legal effect. No liability is assumed for its content. The authentic version of this act is the one published in the Official Journal of the European Union.