21 November 2022
Digital Services Act (DSA) - an overview
The Digital Services Act is finalised but where is the Online Safety Bill?
What's the issue?
The UK and EU have been pursuing parallel legislative attempts to regulate user generated content online. As we discuss here, the EU's Digital Services Act (DSA) is intended to ensure a safe, predictable and trusted online environment, addressing the dissemination of illegal content online and the societal risks that the dissemination of disinformation or other content may generate". (Recital 9). The UK's Online Safety Bill (OSB) meanwhile is intended to "deliver[s] the government’s manifesto commitment to make the UK the safest place in the world to be online while defending free expression" by requiring platforms "to tackle and remove illegal material online, particularly material relating to terrorism and child sexual exploitation and abuse."
The approaches have similar aims but create very different regimes and the headline difference is that the DSA tackles illegal online content, whereas the OSB, at least so far, also tackles user generated content which is lawful but harmful.
What's the development?
The DSA which was proposed in December 2020, has been published in the Official Journal and will come into force on 16 November. It will, for the most part, apply from 17 February 2024. Meanwhile, the OSB, initially introduced to Parliament in its current form in April 2022, over a year after it was first published, has stalled.
The OSB was widely expected to become law by the end of 2022, and may still do so. However, it was paused at the report stage after its second reading when Boris Johnson stepped down as Prime Minister. Liz Truss, his ill-fated successor, was widely reported as wanting to revisit the legislation. On 20 September 2022, the new DCMS Secretary of State, Michele Donelan, appeared to confirm this, speaking on BBC Radio 4's Today Programme. While not going into detail, she suggested there would be changes although they would not impact rules protecting children. There followed informed speculation that the changes would remove provisions around lawful but harmful content, arguably in the interests of protecting free speech.
Another few weeks brought the UK another Prime Minister, albeit with Donelan re-appointed in post. Having said the OSB would return to Parliament in the Autumn, it was dropped from the order of business a second time at the end of October. A DCMS spokesperson confirmed that the government would bring the OSB back to Parliament "as soon as possible", but as we approach Christmas, it is unclear when this might be.
Indications are that the government is keen to proceed before the end of the year, however, it is less certain what approach will be taken under the latest Prime Minister Rishi Sunak. During his failed leadership campaign in the Summer, Sunak, like Truss, promised to remove the 'legal but harmful' provisions. However, former digital minister Damian Collins has recently been reported as saying that removal of lawful but harmful content will be required where that content breaches a platform's terms and conditions, with Ofcom enforcing compliance. This suggests some form of regulation of 'lawful but harmful' user generated content will remain.
What does this mean for you?
EU and UK online service providers and search engines, but also any service that allows one user to encounter content from another user, will need to stay on top of this area of regulation. The EU's plans are now finalised. You can read more about them in our Interface edition which covers key aspects in detail. As for the Online Safety Bill, all may become clear – or at least clearer – in the next few weeks. Given, however, that the OSB provides for a number of Ofcom Codes to set out further detail, full clarity may be some way off. In the meantime, you can read more about what we can expect under the current draft here.
In this series
Digital Services Act (DSA): What digital intermediaries need to know
21 February 2024
by Multiple authors
145 days DSA for VLOPs: The takeaways for smaller service providers
17 January 2024
by Multiple authors
Update on reporting and transparency requirements under the DSA
15 December 2023
Getting DSA-ready: 4 relevant steps in order to achieve compliance
16 November 2023
Requirements for online marketplaces under the EU Digital Services Act (DSA)
15 September 2023
A snapshot of the DSA’s impact on media companies
Philipp Koehler and Thomas Walter look at the issues faced by many media companies when deciding whether or not they fall within scope of the EU’s Digital Services Act.
12 June 2023
Digital Services Act (DSA): Dark Patterns and other current issues
23 February 2023
Digital Services Act (DSA): The development of the DSA’s regulatory structures
23 February 2023
Digital Services Act (DSA): The final countdown for publishing the number of average monthly active recipients
23 February 2023
The Digital Services Act is finalised but where is the Online Safety Bill?
21 November 2022
Digital Services Act – an overview
Gregor Schmid and Philipp Koehler highlight the key elements of the incoming EU Digital Services Act.
19 September 2022
The EU's DSA and the UK's OSB: a comparison of their approaches to online safety
Adam Rendle looks at the differences and similarities in the approach of the EU and UK to online safety under incoming legislation.
19 September 2022
by Adam Rendle
What is the scope of the Digital Services Act?
Alexander Schmalenberger looks at the scope of the Digital Services Act, what it covers and who is caught.
19 September 2022
Online intermediaries and illegal content under the Digital Services Act
Johanna Götz looks at the DSA's approach to online intermediary responsibility for illegal content.
19 September 2022
Duties under the Digital Services Act
Alexander Schmalenberger looks at the main obligations on intermediaries (other than those relating to illegal content).
19 September 2022
The DSA: advertising, dark patterns and recommender systems
Maarten Rijks and Annemijn Schipper look at the impact of the DSA on targeted advertising and the use of dark patterns and recommender systems.
19 September 2022
New KYBC obligations for online platforms
Sasun Sepoyan and Otto Sleeking look at the impact of Article 24c of the DSA.
19 September 2022
National enforcement of the Digital Services Act
Elisa-Marlen Eschborn looks at the Member State enforcement provisions of the DSA.
19 September 2022
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