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Digital Services Act dates OJEU publication

28 Oct 2022, 2:54 pm

The EU Digital Services Act (DSA) will come into force on 16 November following its publication in the Official Journal of the EU (OJEU) on Thursday

The majority of the Digital Services Act’s provisions, which were formally approved by EU law makers earlier this month, will take effect from 16 February 2024, though rules specific to ‘very large online platforms’ are expected to come into effect earlier.

Frankfurt-based technology law expert Dr. Nils Rauer of Pinsent Masons said: “The Digital Services Act (DSA) fundamentally alters the liability framework for online intermediaries operating in the EU and stiffens requirements around how they manage illegal and harmful content published, and goods and services sold, via their services. However, not all service providers are affected by the DSA in the same way – a tiered system of regulation applies, with obligations of varying stringency depending on the nature and size of the services provided.”

“For intermediaries to understand exactly what obligations they must comply with, they must first determine how their services should be categorised for the purposes of the DSA,” he said.

Pinsent Masons has developed a guide to help online intermediaries understand how the Digital Services Act might apply to their business.

Some of the provisions of the DSA will take effect immediately that the regulation comes into force. These include reporting obligations that are aimed at helping the European Commission to understand whether platforms meet the criteria for designation as ‘very large online platforms’. Designation is expected where platforms have a number of average monthly active recipients for their service in the EU that is “equal to or higher than 45 million” – a number equivalent to 10% of the EU population. It is a threshold that will be kept under review.

Euractiv has reported that the Commission has already held informal “pre-designation talks” with some large technology companies. According to its report, designation of very large online platforms is anticipated in March or April 2023, with the DSA’s rules for such platforms then likely to apply from July next year.

The DSA builds on existing provisions of EU law under the E-Commerce Directive, which governs what online intermediaries need to do currently when they become aware of the existence of illegal activity on their services.

The DSA will introduce a new ‘notice and action’ procedure for reporting, and for the potential removal or blocking of access to, content.

The regulation also includes provisions aimed at curbing targeted advertising based on the use of individuals’ sensitive personal data. Targeted advertising at children using any of their personal data will be prohibited too. Restrictions on the way platforms can influence user behaviour through the way their interfaces are designed or operate will also apply.

Very large online platforms, and very large online search engines too, will be obliged to carry out an annual assessment to identify systemic risks associated with their services with a view to them addressing those risks. The dissemination of illegal content is one specific risk that is listed in the DSA that the businesses will be required to assess against. Other risks listed include actual or foreseeable negative effects on civic discourse and electoral processes, and public security.

The European Commission will be responsible for supervising the activities of very large online platforms and very large online search engines under a new regulatory framework that will involve national regulators taking responsibility for overseeing the compliance of smaller businesses that are subject to the DSA.

Fines of up to 6% of annual global turnover of will be able to be levied on online platforms and search engines that fail to comply with the new legislation.

Luxembourg-based Aurélie Caillard of Pinsent Masons has highlighted how the DSA could also influence the way online intermediaries manage disinformation risk.