Participatory Financing and Digital Services: Regulation and ISPs

Spanish and EU regulations on digital services and crowdfunding services complement each other harmoniously. Spanish law, in particular Law 34/2002 of 11 July 2002 on Information Society Services and Electronic Commerce (LSSI), establishes the general rules applicable to digital services, including crowdfunding services. Regulation (EU) 2022/2065 of 23 June 2022 on digital services (DSA) lays down specific rules for online intermediation services, including crowdfunding services.

The DSA establishes a uniform legal regime for online intermediation services in the European Union. This legal regime is based on the following principles:

• Transparency: Online brokering services should be transparent about their policies and practices, and should provide users with clear and concise information about their rights and obligations.
• Liability: Online intermediary services should be liable for the content they host or make available, insofar as they know or should know that such content infringes the law.
• Protection of users: Online intermediary services must take measures to protect users from illegal or harmful content.

The LSSI also establishes a legal regime for online intermediation services. This legal regime is similar to that established by the DSA, but has some specific differences. For example, the ISESA provides that online intermediary services are not liable for content that they host or make available if they do not know or ought to know that such content infringes the law.

In general, Spanish and EU rules on digital services and crowdfunding services complement each other harmoniously. The DSA establishes a uniform legal regime for online intermediation services in the EU, while the LSSI establishes a specific legal regime for online intermediation services in Spain.

Complementary nature of EU Regulation 2022/2065 to the E-Commerce Directive

In particular, the DSA sets out the following specific rules for online intermediation services:

• Content moderation obligation: Online intermediary services that host or make available user-generated content must take measures to moderate such content and remove illegal or harmful content.
• Transparency obligation: Online brokering services must be transparent about their policies and practices, and must provide users with clear and concise information about their rights and obligations.
• Obligation to cooperate with the authorities: Online intermediary services must cooperate with the competent authorities in the fight against illegal or harmful content.

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Complementarity of Spanish and EU legislation on digital services and crowdfunding services

Spanish and EU regulations on digital services and crowdfunding services:

• EU Regulation 2022/2065 is complementary to the E-Commerce Directive. The E-Commerce Directive sets out the general rules applicable to information society services, including online intermediation services. The DSA sets out specific rules for online intermediation services, which are in addition to the general rules laid down by the E-Commerce Directive.
• The Information Society Services Directive (Directive 2000/31/EC), as amended by Directive (EU) 2018/1808, lays down basic rules for services provided by online service providers in the European Union, which applies to all services provided online, including crowdfunding services.
• Law 5/2015 of 27 April 2015 on the promotion of business financing regulates crowdfunding services in Spain. This law establishes additional requirements for crowdfunding platforms operating in Spain.

Classification of crowdfunding services in the Digital Services Regulation

The Digital Services Regulation classifies crowdfunding services as online intermediation services. Online intermediation services are those that facilitate interaction between two or more parties, without the service provider being involved in the provision of the underlying service.

Providers of online intermediation services

Online intermediation service providers are natural or legal persons that provide online intermediation services. Online intermediation service providers can be companies, non-profit organisations or individuals.

Examples of online brokering service providers

Examples of online brokering service providers include:

• Online marketplaces: Amazon, eBay
• Social networks: Facebook, Twitter
• Data hosting platforms: YouTube, Instagram
• Crowdfunding platforms: Goteo, Lending Club, Lending Club, etc.

Difference between intermediary data hosting services (posting) and cloud computing services (cloud computing)

Intermediate data hosting services (posting) are services that allow users to publish content online, such as videos, images or text. Cloud computing services are services that allow users to store data on remote servers.

Examples of intermediary data hosting services

Some examples of intermediary data hosting services are:

• Video platforms:YouTube, Vimeo
• Image platforms:Instagram, Pinterest
• Text platforms:Wikipedia, Medium

Examples of cloud data hosting services

Examples of cloud data hosting services include:

• Amazon Web Services (AWS)
• Microsoft Azure
• Google Cloud Platform

The role of fat checkers

Fat checkers are independent organisations that play a key role in the liability regime for online intermediary service providers. Fat checkers can inform online intermediary service providers about illegal content or activities that they host or facilitate. If the online intermediary service provider acts on the information.

Liability regime for providers of online intermediation services (online platforms)

The liability regime for online platforms is set out in Article 14 of the Digital Services Regulation. This regime establishes a general rule of exemption from liability for online intermediary service providers, provided that they are not aware of the illegality of the content or activity they host or facilitate.

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