Hailed as a ‘landmark new set of EU rules for a safety and more accountable online environment’, the new EU Digital Services Act (‘DSA’) has big expectations to uphold. Aimed at minimising harm and risks in the online sphere, the Act will impact all digital services that ‘connect consumers to goods, services or content’, and will come into full force in February 2024. In this article, we examine the DSA’s main provisions, look at who it will impact and how, and whether it will be effective at tackling online risk and harm.
The DSA: What Is It?
The New EU Digital Services Act is a complex legislation, composed of 93 Articles.* It is part of the EU’s drive to:
- Cultivate a safe digital space that respects and protects users’ rights
- Create a digital market that fosters innovation, stimulates growth and has a healthy amount of competition
The DSA has been drawn up alongside the Digital Market Act (DMA) to form a holistic set of rules that will apply to digital service providers across the EU.
*(Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC)
Who does the DSA affect?
The DSA affects providers of intermediary information society services (i.e. intermediary of services normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services) offered to recipients established or located in the EU. This will include:
- Internet Service Providers
- Domain Name Registrars
- Cloud and Web-hosting Service Providers
- Online Marketplaces
- App Stores
- Social Networks
However, it’s important that some distinction is made amongst the various categories because progressively stricter legal obligations will apply to each tier:
- Generic providers of intermediary services, which are bound to a basic set of obligations
- Providers of hosting services, which are bound, in addition, to further obligations
- Online platforms, which are bound, in addition, to further obligations
- “Very Large Online Platforms” and “Very Large Online Search Engines”, which have a number of average monthly active recipients of the service in the EU equal to or higher than 45 million and are bound to the strictest obligations
Some small and micro-enterprises are exempted from the most costly obligations.
The Main Obligations Applicable to All Providers
- To provide certain information to the national authorities following orders to remove illegal contents or enquiries;
- To designate a single point of contact to enable providers to communicate directly, by electronic means, with the competent authorities and with users and, if not established in the EU, to appoint a legal representative therein;
- To include in their T&C information on any policies, procedures, measures and tools used for the purpose of content moderation, including algorithmic decision-making and human review, as well as the rules of procedure of their internal complaint handling system;
- To draft, at least once a year, reports on any content moderation that they engaged in during the relevant period
Obligations of Providers of Hosting Services
- To put in place mechanisms to allow any individual or entity to notify them of the presence on their service of specific items of information that the individual or entity considers to be illegal content.
Duties of Online Platforms
- To take the necessary technical and organisational measures to ensure that notices submitted by so-called “trusted flaggers” are given priority and are processed and decided upon without undue delay.
Stricter Obligations for Very Large Online Platforms and Search Engines
- To diligently identify, analyse and assess any systemic risks in the EU stemming from the design or functioning of their service and its related systems, including algorithmic systems, or from the use made of their services;
- To conduct specific content moderation processes, including the expeditious removal of, or the disabling of access to, certain content where a “crisis” (i.e. extraordinary circumstances leading to a serious threat to public security or public health in the EU or in significant parts of it) occurs.
When will the DSA come into force?
The DSA will be fully applicable from 17 February 2024. However, certain provisions are already enforceable since 16 November 2022. Most of the DSA’s provisions became applicable on the 17 February 2023, such as Article 24(2) which will require online platforms to publish information on their average monthly active users in the EU publicly on their interface. This report should be updated on a semesterly basis.
Fines for Non-Compliance
Non-compliance with the DSA may result in fines up to 6 % of total global annual turnover of the provider concerned, in the worst case scenario.
It seems to us that the new DSA, in line with certain EU legislation, like the GDPR, imposes unnecessary and costly bureaucratic burdens to the operators, without practically benefiting citizens. Can we realistically affirm that, as a matter of fact and thanks to the GDPR, the privacy of EU citizens is more protected than the one of e.g. the US citizens? The answer is negative and we expect that the DSA will lead to a similar disappointing outcome for the EU users of digital services.
Furthermore and even more concerning is the effect, produced by the DSA, to further increase the pressure to moderate and remove allegedly harmful content from online platforms, upon initiative of the so-called “trusted flagger”, the status of which is ultimately awarded by governmental authorities.
There will be again governmental authorities to decide when a “crisis” shall take place and which controversial but true information shall be removed from the internet in such circumstances.
Therefore, despite the theoretical propositions to the contrary, as a matter of fact, the DSA provides little or no support to guarantee the freedom of speech.
However, we remain available to help the operators to comply with this new legislation, as well as to help users to enforce their right to freedom of speech.
Written by Federico Regaldo