The Digital Services Act (hereinafter "DSA") came into force on 16 November 2022. Yet most of the obligations that the DSA imposes on providers of intermediary services will not apply until February 17, 2024.
In our last article on this topic, we presented some of the most important requirements of this new legislation that will affect providers of intermediary services in the EU.
In the following, we will focus on the obligations of providers of hosting services, including online platforms, (1) to submit decisions and statements of reasons on certain user restrictions to the DSA Transparency Database implemented by the EU Commission in September 2023 as well as (2) to publish so-called transparency reports on the content moderation they have carried out during a relevant period of time.
Obligation to submit decisions and statement of reasons according to Art. 17, 24(5) DSA
Legal background
The DSA sets out a submission obligation to the EU Commission in Art. 24 DSA. According to Art. 24(5) DSA, the providers of online platforms should immediately provide the Commission with the decisions and statements of reasons referred to in Art. 17(1) DSA for inclusion in a publicly accessible database managed by the Commission.
According to Art. 17(1) DSA, providers of hosting services, including online platforms, should provide all affected users with a clear and specific statement of reasons for any subsequent restrictions imposed on the ground that the user concerned has provided content that is illegal or incompatible with the terms of use.
Thus, in particular online platforms should not only communicate the statements of reasons in accordance with Art. 17(1) DSA to the affected user, but also transmit it to the Commission, where they are archived in a publicly accessible database.
Transmission process
While online platforms are therefore required to transmit the aforementioned information to a database, this database is managed by the EU Commission. This so-called DSA Transparency Database of the EU Commission has implemented an API for this purpose, which is currently only used by Very Large Online Platforms (hereinafter "VLOPs") to which the DSA already applies. However, at the beginning of 2024, the EU Commission will also approach other online platforms to enable onboarding for the database.
The transmission process works by creating a submission request to a specific endpoint, which requires a dedicated token that the online platform will receive from the EU Commission in advance during onboarding. Within this transmission process, the EU Commission also specifies the exact information to be transmitted. In some cases, the process also asks for information that is not explicitly prescribed by the DSA and is therefore arguably additionally required by the EU Commission (for example, the type of content, such as video or image or language).
Transparency reports pursuant to Art. 15, 24(1) DSA
Legal background
An additional reporting obligation arises from Art. 15, 24(1) DSA. Accordingly, providers of intermediary services should publish reports on the content moderation they have carried out in the relevant period publicly available at regular annual intervals (so-called transparency reports). These reports must include among others information such as the number of orders providers have received from Member States' authorities, the human resources dedicated to content moderation, the number of accounts and items of content taken down voluntarily by the provider or based on a notice, and the accuracy and rate of error of their automated content moderation systems. As already mentioned, the reporting obligation under the DSA already applies to some large online platforms and search engines that have been classified as VLOPs and VLOSEs (Very Large Online Search Engines) with a few deviations. For example, the annual obligation is tightened to a half-yearly reporting obligation for VLOPs/VLOSEs in accordance with Art. 42(1) DSA. Due to the fact that VLOPs and VLOSEs already implement this reporting requirement, the transparency reports of the VLOPs and VLOSEs are already publicly accessible since November 2023 (please see here for an overview provided by the EU Commission).
Implementing Regulation on transparency reporting under the DSA
On the one hand, this means that providers of online platforms that are not VLOPs can be guided by the reports already provided by the VLOPs and VLOSEs. However, an evaluation of the transparency reports to date indicates that the substantive requirements of Art. 15, 24(1), 42(1) DSA are often subject to different interpretations, which leads to different content within the various reports.
In order to resolve this legal uncertainty, the EU Commission is currently working on an evaluation of the transparency reports made to date. With the assistance of this evaluation and the feedback received from the public consultation, the EU Commission plans to issue an implementing regulation as prescribed under Art. 15(3) DSA (please see here for further information). The regulation, which is due to be adopted in the first months of 2024, aims to improve the quality and degree of harmonization of reports in order to ensure the same level of transparency and accountability for all providers of intermediary services. In particular, it is intended to mandate the form and content of the reports by defining binding templates and standardizing the reporting periods for all parties concerned.
Outlook
In light of the latest report by the Federation of German Consumer Organizations (“VZBV”), (in German only), the prospective implementing regulation appears to be particularly necessary. In the VZBV's view, the report has shown that the new obligations imposed by the DSA are often only insufficiently implemented. Therefore, it appears that there may be ambiguities with respect to the implementation of the requirements under the DSA, which could also affect reporting obligations. As a result, it is important that the EU Commission creates further guidance for providers of intermediary services by February 17, 2024 in order to ensure effective implementation of the objectives of the DSA.
