On 19 October 2022, the EU Digital Services Act (Regulation 2022/2065 on a Single Market For Digital Services; the “DSA”/the “Regulation”) was adopted. l. Together with the Digital Markets Act (Regulation 2022/1925 on contestable and fair markets in the digital sector), the Digital Service Act aims to create a safer and more open online environment in which the fundamental rights of all users of digital services are effectively protected. The DSA amends and modernises the e-Commerce Directive that for more than 20 years has regulated different aspects of online activity of service providers.
The DSA lays down fully harmonised rules on the provision of intermediary services in the internal market (Article 1 of the Regulation). Importantly, the Regulation applies to the intermediary services offered to services recipients located in the EU (Article 1). It means that the instrument applies also to companies which are based outside the territory of the EU. The intermediary services englobe “mere conduit” services, “caching” services and “hosting” services (Article 3 (g)). In other words, the DSA regulates the functioning of a whole range of digital companies such as social networks, online marketplaces, app stores or online travel and accommodations platforms. The activity of “online platforms” and “online search engines’” is subject to specific requirements. Moreover, providers of “very large online platforms” and of “very large online search engines” must comply with even more stringent obligations (Section 5 of the Regulation). These two categories include “online platforms and online search engines which have a number of average monthly active recipients of the service in the Union equal to or higher than 45 million”, and which are designated as such by the European Commission (Article 33).
The DSA increases the accountability of digital service providers and imposes on them concrete obligations regarding countering illegal content and disinformation as well as ensuring fully transparent advertising. Those obligations include: giving effect to the orders against illegal content issued by national authorities (Article 9), providing information on the policies and procedures such as algorithmic decision-making (Article 14) or publishing yearly reports on content moderation (Article 15). The administrators of online platforms are additionally required to respect a set of rules regarding, inter alia, advertising (e.g. Articles 26 and 28), traceability of traders (Article 30) and complaint mechanisms for affected users (Article 20). “Very large online platforms” and “very large online search engines” need to comply with more sophisticated requirements concerning for instance advertising transparency (Article 39) or publication of the terms and conditions (Article 14(6)).
The DSA entered into force on 16th November 2022. It will apply to the majority of digital companies as of 17 February 2024 (Article 93). Yet, as far as the providers of “very large online platforms” and of “very large online search engines” are concerned, some new obligations foreseen in the Regulation will apply four months after the designation of such entities by the European Commission (Article 92). It can be thus expected that some big companies will need to comply with the DSA regime already in early 2023.
The entry into force of the DSA is a symbolic step forward in the process of building the Digital Single Market. The fight against disinformation and the quest for transparency constitute legitimate objectives that shall be duly considered during the regulation of the multidimensional growth of the providers of online services. The DSA is the long-awaited answer to compelling challenges linked with an increasing digitalisation of European and global society. Yet, only the concrete application of the Regulation in the months to come will show to what extent the EU legislator succeeded in striking a delicate balance between the freedom of expression and other fundamental rights such as the right to privacy or the freedom to conduct a business.
Alicja Słowik, The Digital Services Act: towards enhanced protection of users' rights online, actualité du CEJE n° 28/2022, 5 novembre 2022, disponible sur www.ceje.ch