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 New EU Digital Services Act is a complex legislation, composed of 93 Articles.* It is part of the EU’s drive to:
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)
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:
However, it’s important that some distinction is made amongst the various categories because progressively stricter legal obligations will apply to each tier:
Some small and micro-enterprises are exempted from the most costly obligations.
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.
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
