the Digital Services Act and the challenging fight against wildlife cybercrime

The European Parliament recently adopted the Digital Services Act (DSA), which is a welcoming step in the right direction for addressing illegal wildlife trade online.

The last EU law to set out rules for online services (the e-Commerce Directive) was adopted in 2000 and online trade has changed quite a lot since then.

Online wildlife trafficking is driven by consumer demand for wildlife products like elephant ivory, rhino horn and big cat skins, as well as for live pets, which is partly fueled by the promotion of exotic pet ownership and interactions on social media. Illegal wildlife trade, both online and in physical markets, is decimating populations of wild species and is a contributor to the catastrophic biodiversity loss seen globally.

In March 2018, IFAW launched the Coalition to End Wildlife Trafficking Online, together with WWF and TRAFFIC. The 47 online technologies companies now involved in the coalition removed or blocked to date over 11.6 million listings of endangered or threatened species and associated products were from their platforms. Despite progresses have been made, reports indicate the illegal wildlife trade continues to proliferate online, and media frequently report about the easy access to illegal wildlife on online platforms.

The DSA is an innovative legislation which defines responsibilities and accountability for providers of intermediary services, and in particular online platforms, such as social media and marketplaces, to ensure that “what is illegal offline is illegal online”.

As such, we are pleased to see that the DSA incorporates our calls and includes the illegal trade of animals in the definition of illegal content and in the list of systemic risks associated with the dissemination of illegal content. This implies that very large online platforms – those with more than 45 million of users in the EU – have to assess the risk of selling illegal wildlife and act to mitigate it.

Other important obligations introduced by the DSA are that providers of online platforms should make “reasonable efforts”, including random checks, to verify whether the offered wildlife species have been identified as being illegal. They should also put in place harmonized “notice and action” procedure where users will be empowered to report illegal content online and online platforms will have to act quickly.

Importantly, online platforms will need to make their best efforts to assess the reliability of the information provided by the traders, and the European Commission as well as the Member States will have access to the algorithms of very large online platforms. Dissuasive penalties have been foreseen if the DSA provisions are not respected, as online platforms and search engines can be fined up to 6% of their worldwide turnover.

However, the adopted DSA also includes dangerous and unjustified exemptions on traceability obligations for small platforms and a waiver for medium-size platforms. As protected species are often illegally sold as exotic pets in small and specialized platforms, these exemptions lower the effectiveness of the DSA and introduce loopholes.

NGOs may play an active role in supporting the implementation of the DSA, collaborating with the platforms and national authorities as “Trusted Flaggers”: a group of experts nominated by the national authorities to which platforms should react promptly.

IFAW is willing to collaborate with the European Commission and national authorities to ensure that the DSA’s implementation effectively contributes to fighting wildlife cybercrime. As provided by the DSA provisions, we call on the Commission to promptly encourage and facilitate the drawing up of EU codes of conduct to tackle the wildlife cybercrime. These could support other existing initiatives and policies to fight wildlife cybercrime, by stimulating online platforms into taking meaningful harmonized action and enhancing transparency and accountability. NGOs should also receive adequate financial support if they have to play an active role in the implementation of the DSA.

The effective implementation and enforcement of the DSA will demand structural adaptations in online platforms, Member States and the Commission, with significant challenges to overcome in the coming months.

However, by taking a systemic approach to tackling illegal online trade, the DSA could significantly help in protecting wildlife in the digital age.