Auteurs

Alexander Schmalenberger, LL.B.

Knowledge Lawyer

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Dr. Gregor Schmid, LL.M. (Cambridge)

Associé

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Philipp Koehler

Salary Partner

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Auteurs

Alexander Schmalenberger, LL.B.

Knowledge Lawyer

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Dr. Gregor Schmid, LL.M. (Cambridge)

Associé

Read More

Philipp Koehler

Salary Partner

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17 janvier 2024

Digital Services Act (DSA) - an overview

145 days DSA for VLOPs: The takeaways for smaller service providers

  • Briefing

A lot has happened since the Digital Services Act (DSA) became applicable for the very large online platforms (VLOPs), which the European Commission designated as such on 25 April 2023. Issues such as disinformation, terrorism and hate speech, particularly in the wake of the events of 07 October 2023, as well as the security and transparency of large app stores, are at the heart of measures taken by the European Commission in the meantime. Apart from that, the effective enforcement of the DSA with the aid of modern technology is also increasingly being prepared.

The European Commission's practice provides important insights, also for the future application of the DSA to smaller companies. The DSA will apply to many digital service providers in the European Union (EU) or with a substantial connection to the EU below the VLOP threshold (i.e. 45 million average monthly active users) as of 17 February 2024. This article provides an overview of the latest developments and what smaller companies can learn from them.

Content moderation and user protection: The challenges for large companies and the lessons to be learned for smaller ones

The European Commission has already set out its priorities for the application of the DSA at an early stage. This section provides an overview of the European Commission's current DSA processes and the challenges faced by VLOPs, in particular with regard to content moderation and user protection.

Proceedings over content moderation, misleading user interfaces and advertising transparency violations

The European Commission has opened formal proceedings against X. This is due to possible violations of content moderation, misleading user interfaces, transparency in advertising and access to data for researchers. In this context, the European Commission fears violations of Article 34(1) and (2), Article 35(1), Article 16(5) and (6), Article 25(1), Article 39 and Article 40(12) DSA. Another company has also been asked about how its platform can prevent the distribution of illegal content. However, this has not yet been subject to a European Commission investigation. 

App store reviews

Some service providers have received enquiries from the European Commission about the security measures in their app stores. The European Commission is requesting information on the identification of systemic risks and compliance with transparency standards. The European Commission is thus investigating compliance with Articles 26, 27, 30 et seq. and 34 DSA.

Consumer protection on online trade market places

The European Commission is asking some major online trading platforms to provide details of their efforts to assess risks, protect consumers and prevent the sale of illegal products. In doing so, the European Commission is examining the compliance with Art. 27 and 30 et seq. DSA. 

Protecting minors on social media

Several major service providers have been asked by the European Commission to provide information on the protection of minors. They must also disclose any risks to users' mental and physical health as well as risk assessment and mitigation measures. The European Commission is thus investigating compliance with Articles 28 and 34 DSA. 

More information on ongoing cases:

A detailed list of current proceedings against VLOPs/VLOSEs can be found on the European Commission's website. This page provides an overview of the VLOPs and VLOSEs monitored by the European Commission and its main enforcement activities. 

Findings for smaller service providers as of 17 February 2024

Smaller companies (below the VLOP/VLOSE threshold) should expect the national authorities to focus on the same issues as the European Commission. In particular, the topics "fight against illegal content", "fight against illegal products", "transparency of advertising", "transparency of recommender systems" and "protection of minors". In Germany, for example, there are plans to set up a central complaints office at the Federal Network Agency (BNetzA). And the Federal Criminal Police Office (BKA) is supposed to be given significant resources for the prosecution of illegal content.  

Once the national enforcement structure for the DSA is implemented, actions against illegal products by associations and interest groups could also intensify. In addition to the authorities, privileged associations, so-called "trusted flaggers" (Article 22 DSA), could also come into play. Their complaints must be dealt with swiftly and with priority by the service providers. There is also the possibility that authorities from other EU Member States will issue orders to act against illegal content (Article 9 DSA), which must then have to be complied with.

Administrative measures and new transparency requirements

The enforcement of existing rules is particularly a challenge that even the European Commission cannot solve on its own. As provided for in the DSA, steps have therefore been taken to improve cooperation between the relevant authorities in the EU and to automate monitoring. 

Creation of the DSA Transparency Database

The European Commission has launched the DSA Transparency Database [Article 24(5) DSA], a substantial innovation. VLOPs are now required to submit data on their content moderation decisions to this database. As of 17 February 2024, other online platforms will also be required to populate the database. 

Digital services and database on general terms and conditions

The European Commission has also launched a database on general terms and conditions for digital services. This database collects the terms and conditions of online platforms and allows regulators and researchers to track changes in real-time. Online platforms below the VLOP threshold will also be included as of 17 February 2024. 

Administrative cooperation

Administrative arrangements have been concluded with national authorities, such as the Dutch ACM (Authority for Consumers and Markets), to support the enforcement of the DSA. This cooperation aims to develop expertise and facilitate the exchange of information across borders. 

Looking ahead

The introduction of the DSA has already brought forward profound changes for VLOPs and these developments also provide initial important insights for smaller service providers, who will also be affected by these regulatory requirements as of 17 February 2024. The transparency databases, which are already mandatory for VLOPs, could present a future challenge as well as opportunity for smaller service providers. These databases allow automated review of content moderation decisions as well as terms and conditions, which could facilitate private enforcement. 

The active and rigorous enforcement practice of the European Commission in relation to VLOPs suggests that there is likely to be a more consistent application of the DSA's rules across the EU. This, together with administrative agreements between the European Commission and national authorities, signals an increasingly harmonised approach to digital market surveillance law. Smaller companies should therefore prepare for increased scrutiny and possible adjustments to their business practices.  

Once national authorities and trusted flaggers can start enforcing the DSA as of 17 February 2024, there is likely to be further momentum. These developments underline the importance of proactively adapting to the changing of the regulatory requirements in the digital space.

Dans cette série

Technologies de l'information

Digital Services Act (DSA): What digital intermediaries need to know

21 February 2024

par plusieurs auteurs

DSA National Implementation

17 February 2024

par plusieurs auteurs

Technologie, Médias et Communications (TMC)

145 days DSA for VLOPs: The takeaways for smaller service providers

17 January 2024

par plusieurs auteurs

Technologie, Médias et Communications (TMC)

Requirements for online marketplaces under the EU Digital Services Act (DSA)

15 September 2023

par Philipp Koehler

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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

par Philipp Koehler, Thomas Walter

Technologie, Médias et Communications (TMC)

Digital Services Act (DSA): Dark Patterns and other current issues

23 February 2023

par Dr. Gregor Schmid, LL.M. (Cambridge)

Technologie, Médias et Communications (TMC)

Overview Digital Legislation EU

1 February 2023

par Thanos Rammos, LL.M.

Technologie, Médias et Communications (TMC)

The Digital Services Act is finalised but where is the Online Safety Bill?

21 November 2022

par Debbie Heywood

Technologie, Médias et Communications (TMC)

Digital Services Act – an overview

Gregor Schmid and Philipp Koehler highlight the key elements of the incoming EU Digital Services Act.

19 September 2022

par Dr. Gregor Schmid, LL.M. (Cambridge), Philipp Koehler

Technologie, Médias et Communications (TMC)

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

Technologie, Médias et Communications (TMC)

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

par Alexander Schmalenberger, LL.B.

Technologie, Médias et Communications (TMC)

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

Technologie, Médias et Communications (TMC)

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

par Alexander Schmalenberger, LL.B.

Technologie, Médias et Communications (TMC)

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

par Maarten Rijks, Annemijn Schipper

Technologie, Médias et Communications (TMC)

New KYBC obligations for online platforms

Sasun Sepoyan and Otto Sleeking look at the impact of Article 24c of the DSA.

19 September 2022

par Sasun Sepoyan, Otto Sleeking

Technologie, Médias et Communications (TMC)

National enforcement of the Digital Services Act

Elisa-Marlen Eschborn looks at the Member State enforcement provisions of the DSA.

19 September 2022

par Elisa-Marlen Eschborn, LL.M. (Turin)

Données et cybersécurité

Digital Services Act (DSA) - an overview

par plusieurs auteurs

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