Part 1: Compliance is Now!
In the first part, our team presented the specific obligations of intermediary services, hosting services and online platforms under the DSA and answered the key questions: DSA compliance – why, who, what and when?
DSA – Why?
The main objective of the DSA is to create a safer online environment across the EU. This includes tackling pressing issues such as the spread of hate speech, disinformation and counterfeit products. The DSA also intends to update some provisions of the rather outdated E-Commerce Directive which was subject to diverging interpretations by Member States, leading to a fragmented regulatory landscape of the online space. The DSA shall put an end to this and harmonise the rules for digital services across the EU.
DSA – Who?
Territorially, the DSA applies very broadly, not only to providers based in the EU but also to providers who offer their services to users in the EU, regardless of where they are established. This means that – similar to the GDPR – the DSA has an extraterritorial scope.
The personal scope of the DSA covers all intermediary services, including mere conduit, caching and hosting, as well as online platforms, including B2C marketplaces, and search engines. Finally, very large online platforms and very large online search engines, also known as VLOPs and VLOSEs, fall within the scope of the DSA.
DSA – What?
To achieve the intended uniform legal landscape in the digital services market, the DSA introduces a comprehensive catalogue of due diligence obligations (Artt. 11 – 43 DSA), ensuring increased transparency and accountability of providers. The system of obligations follows a tiered approach, which – simply put – means that the larger or more impactful the service, the more obligations the provider has to comply with. Failure to comply can result in considerable fines, up to 6% of the service provider's global annual turnover in the year preceding the violation.
DSA – When?
The clock is ticking. Just a few more days until the DSA becomes fully applicable to all intermediary services on 17 February 2024. However, the DSA is already applicable to VLOPs and VLOSEs designated on 25 April 2024. The European Commission has sent several formal and informal requests to designated VLOPs and VLOSEs in recent months, asking them to outline their plans for improving online safety and to explain how they address illegal content on their platforms. In December 2023, the Commission initiated the first formal proceedings under the DSA. Overall, the European Commission is committed to a proactive approach to enforcing the DSA.
Part 2: Insights into Implementation and Enforcement
In the second part of our webinar, our panel of experts shed some light on the most frequently asked questions from clients as well as on the status of national implementation and enforcement of the DSA. The DSA introduced a new oversight system, operated by national authorities, the European Commission and the European Board for Digital Services.
At the national level, each Member State is required to appoint a Digital Services Coordinator (DSC), who is responsible for the supervision and enforcement of the DSA in that Member State.
Status of National Implementation
Our panellists from France, Italy, Germany, Ireland and the Netherlands gave us an overview of the current status of national implementation in their respective Member States:
Italy designated the Authority for Communications Guarantees (AGCOM) as its DSC. In the other four Member States, the implementation acts appointing the national DSC and amending national law to align with the DSA are still being drafted or are under discussion in the respective parliament. In France, the Regulatory Authority for Audiovisual and Digital Communications (ARCOM) will be the DSC. In Germany, the Federal Network Agency will take over the competencies and tasks of the DSC. Ireland will appoint the Media Commission and the Netherlands the Netherlands Authority for Consumers and Markets (ACM).
On the Sren Bill which shall amend several French laws, the European Commission already issued two legal opinions in which they urged France to make adjustments. Furthermore, the European Commission warned that Italy shall also align its implementation of the EU Audiovisual Media Services Directive (AVMSD) with the DSA.
It is interesting to note that AGCOM, ARCOM, ACM and the Irish Media Commission have signed administrative arrangements with the European Commission to support the enforcement of the DSA at the EU level. It appears that the Dutch DSC particularly is aligned with the European Commission's proactive approach of enforcement. The ACM published draft guidelines on the DSA in January 2024, which are still open for public consultation.
At the same time, Member states are still pushing for additional regulation in the digital space. Italy for example has the Video Sharing Platform (VSP) law in place. France has recently adopted the Digital majority Law and an Influencer Law. In Germany, the Minister of Justice has announced a new Act against Digital Violence, which aims to better protect victims of digital violence. Ireland is also pursuing similar goals with the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill. In addition, the digital space in Ireland continues to be regulated by the Online Safety and Media Regulation Act 2022.
Our team monitors closely any regulatory developments in all Member States of the EU. We collect all key information online intermediaries need to know about the competent national enforcement authorities under the DSA in all Member States and the status of national implementation. More data is added as Member States progress in the appointments of their DSCs. You can find the overview here.
Developments at the EU Level
As noted, the European Commission is highly involved in the implementation and enforcement of the DSA. In recent months, the European Commission has published a number of tools and templates to help service providers comply with the DSA:
- The DSA obliges online platform providers to submit their statement of reasons for a content moderation decision to the DSA Transparency Database in accordance with Article 25(2). On the same website, the European Commission provides answers to FAQs concerning the general functioning of the DSA Transparency Database, as well as technical questions concerning the submission of statements of reasons and guidelines for online platforms.
- Another key obligation for all intermediary services under the DSA is transparency reporting. Providers will have to publish detailed transparency reports once a year. The content and scope depend on the type of intermediary service and are generally laid down for all intermediary services in Art. 15 DSA. Online platforms must comply with the additional requirements of Art. 24 DSA and VLOPs and VLOSEs additionally with those of Art. 42 DSA. In December, the European Commission published rules and templates providing guidance on the form, content and other details of the reporting requirements.
- In the upcoming months, the European Commission will publish further standards, guidelines and templates for compliance with the DSA. This includes, for example, the list of certified out-of-court dispute settlement bodies pursuant to Art. 21(8), sentence two DSA. As all DSCs will soon be appointed at the national level, we hope that they will also publish guidelines for compliance with the DSA in their respective Member States, similar to the Dutch DSC. These are also developments that we will follow closely and keep you informed.
Next steps
There are only a few days left before the DSA applies to all intermediary services covered by the DSA. This means: Compliance is now! We have come a long way. Your DSA compliance should be at the finish line or in full progress and if not, we would be most happy to help you. 17 February 2024 is the start of applicability but not the end of compliance efforts. As the DSA keeps all intermediaries busy, we will be monitoring upcoming changes, designations, and new developments to keep you informed for your DSA compliance.
Authored by Marlen Mittelstein and Morten Petersenn.
