29 novembre 2022
Digital Services Act (DSA) - an overview
Overview on the Digital Services Act (DSA)
The Digital Services Act (DSA) was finally adopted on 19 October 2022 and published on 27 October 2022. The following provides an overview of this important piece of European legislation.
Who is affected?
B2B and B2C providers of digital intermediary services (intermediaries) who provide users/recipients with access to goods, services and content. In particular, providers of
(a) mere conduit services (Art. 3 lit. g sublit. i), such as internet exchange points, wireless access points, virtual private networks and DNS services;
(b) caching services (Art. 3 lit. g sublit. ii), such as content delivery networks, reverse proxies and content adaptation proxies;
(c) hosting services (Art. 3 lit. g sublit. iii), such as cloud computing and web hosting;
(d) online platforms (Art. 3 lit. i), such as social networks and online marketplaces; and
(e) online search engines (Art. 3 lit. j).
- Providers of online platforms and online search engines must publish information for each online platform / online search engine comprising the average monthly active users/recipients within in the EU until 17 February 2023 and every six months thereafter (Art. 24 para. 2), and provide such information to the Digital Services Coordinator (DSC) upon request (Art. 24 para. 3).
- Providers of VLOPs and VLOSEs must obey the rules specifically applicable to them four months after their designation as such by the European Commission (Art. 92).
The most comprehensive and at the same time strictest requirements apply to very large online platforms (VLOPs) and very large online search engines (VLOSEs) with at least 45 million average monthly active users/recipients within the EU.
The DSA affects such providers if they have (a) an establishment within the EU or (b) otherwise a so-called substantial connection to the EU (Art. 3 lit. e). Such substantial connection is inter alia given, when the respective provider has a significant number of users/recipients in one or more EU Member States in relation to their population or targets activities in one or more EU Member States. Indicators can be language, currency, top level domain of an EU Member State or the delivery of products/services to the EU. In contrast, the mere accessibility of a website alone does not suffice.
Certain exemptions will apply to small companies and micro enterprises (Art. 19 and 29).
What is the DSA about?
The DSA is one of the flagship projects of the European Commission. It aims to set an EU-wide uniform regulatory standard for digital intermediary services in the European Single Market in order to adapt it to the current and future state of digitization. To this end, it aims to provide a safe digital environment free from illegal content, to enhance transparency and accountability and strengthen the protection of consumers and fundamental European rights.From when must the DSA’s rules be observed?
The DSA enters into force on 16 November 2022 and will essentially apply from 17 February 2024 (Art. 93 para. 2). However, some of its rules applicable to specific service providers must be obeyed earlier. In particular:What are the key aspects of the DSA?
The DSA contains a multitude of new rules and follows a tiered regulatory system. All digital intermediary services are subject to basic duties, which are then supplemented by further special duties depending on the classification of the respective digital intermediary service. Such new rules include:| Key Aspects | DSA Articles |
|---|---|
| Liability privileges (safe harbor principles) largely similar to the current European e-Commerce Directive. | Art. 4 to 8 |
| The duty to designate a single point of contact for competent authorities and users/recipients and to publish its contact details. | Art. 11 and 12 |
| For providers without an establishment in the EU, the appointment of a legal representative within the EU. | Art. 13 |
| The duty to remove illegal content swiftly and efficiently upon the order of a court or administrative body. | Art. 9 |
| Formal content moderation requirements and procedures, provisions on notice-and-action mechanisms, internal complaint-handling procedures regarding adverse decisions towards users/recipients and to establish an out-of-court dispute settlement body. | Art. 16, 17, 20 and 21 |
| Various transparency duties, inter alia including the duty to provide transparent information on restrictions affecting the provision of information, such as content moderation, recommender system transparency and new rules on transparency reporting. | Art. 14, 15, 24, 27 and 42 |
| Enhanced protection of minors, including the ban of profiling-based ads. | Art. 28 |
| For B2C online marketplaces, the duty to collect and verify data of their traders (KYBC). | Art. 30 |
| Prohibition of dark patterns and requirements for compliance by design. | Art. 25 and 31 |
| Prohibition of profiling-based ads using sensitive data (e.g. health-related data). | Art. 26 para. 3 |
| Possibility for users/recipients to claim compensation for damages caused by infringements of the DSA. | Art. 54 |
What is the supervision structure?
Which powers do competent authorities have?
The DSA aims to optimize cross-border communication and coordination between the competent authorities of the EU Member States. Each EU Member State must appoint a so-called Digital Service Coordinator (DSC) to monitor and enforce compliance with the DSA until 17 February 2024. The competent authority for VLOPs and VLOSEs is primarily the European Commission. The competent authorities have extensive rights of access, to obtain information, to inspect, to order and to sanction providers of digital intermediary services (Art. 51, 67 to 69). Infringements of the DSA can potentially be subject to sanctions/fines of up to 6% of the worldwide turnover of the preceding financial year (Art. 52 para. 3 and Art. 74 para. 1).Dans cette série
Digital Services Act (DSA): What digital intermediaries need to know
21 February 2024
par plusieurs auteurs
145 days DSA for VLOPs: The takeaways for smaller service providers
17 January 2024
par plusieurs auteurs
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
par Philipp Koehler
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
par Debbie Heywood
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
par 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
par Dr. Johanna Götz
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
Digital Services Act (DSA) - an overview
par plusieurs auteurs
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145 days DSA for VLOPs: The takeaways for smaller service providers
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Getting DSA-ready: 4 relevant steps in order to achieve compliance
Requirements for online marketplaces under the EU Digital Services Act (DSA)
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