The digital services act (DSA)

On February 17th, 2024, Regulation (EU) 2022/2065 of October 19th, 2022, on the creation of a single market for digital services, will become directly applicable in all Member States of the European Union.

The European Commission proposed the implementation of the “Digital Services Package”, on December 15th, 2020, in an attempt to, through this, achieve the creation of a free and safe digital space, both for companies and citizens, based on the premise: “what’s illegal offline should be illegal online”.

The aforementioned European legislative package was divided into two complementary regulations, Regulation (EU) 2022/2065 of October 19th, 2022, on the creation of a single market for digital services, which concerns us in this article, and the (EU) Regulation 2022/1925 of September 14th, 2022, on market fairness in the digital sector.

Dubbed by the European Union itself as the Digital Services Act (“DSA”), (EU) Regulation 2022/2065 has as its main objective the creation of a safe, transparent, and reliable online environment, which allows all European citizens to exercise easily and intuitive understanding of their rights.

The main risks to be taken into account, among others, are:

  • The dissemination of illegal content, goods, services and activities;
  • The difficulty in tracking traders in the markets;
  • The circulation of misinformation, fake news and hate speech/discrimination;
  • The complexity of the platforms’ terms and conditions of use;
  • Targeted advertising;
  • Cyber-harassment and cyber-violence; and
  • The lack of control over minors’ browsing.

It is important to point out from the outset that it is not the DSA that defines the concepts just mentioned, such as what is or is not considered “illegal content”. The great innovative nature of this Regulation is precisely that it created the legal mechanism to automatically consider it applicable online, any and all standards already existing in European Union law or in the national legislation of each member country.

At this point, it should be noted that the DSA is applicable to all “(…) intermediary services offered to recipients of the service whose place of establishment is in the Union or who are located there, regardless of where the providers of these services have their place of establishment”.

We thus come across yet another strongly innovative nature of this DSA, as it is applicable to intermediary services that are not based in the EU, but direct their activities towards the EU space, even partially. Among others, indicative examples are considered that the activity of an intermediary service is dedicated to the EU space, the use of an official language of an EU country as well as the use of € or another currency of an EU country as form of payment.

 

But what, then, are considered intermediary services? From the perspective of the DSA, these can be classified into the following categories:

  • Simple transport services (“mere conduit”): consists of the transmission, through a communications network, of information provided by a recipient of the service or in granting access to a communications network – such as a wireless access point;
  • Temporary storage services (“caching”): consists of the transmission, through a communications network, of information provided by a recipient of the service, which involves the automatic, intermediate and temporary storage of this information carried out solely with the aim of making it more efficient the subsequent transmission of information to other recipients, at their request;
  • Virtual hosting services (“hosting”): consists of storing information provided by a recipient of the service and at their request – such as social networks and the cloud.
  • “Online platforms”: virtual hosting services which, at the request of a recipient of the service, in addition to storing information, end up disseminating it to the public.

It is important to highlight that the website of any company allows most of the time, the posting of online comments or the evaluation of a certain product, which ends up making it revert to the concept of online platforms, and is therefore obliged to comply of this DSA

The entry into force of the DSA must be observed from a double perspective:

If the interested party is the recipient of the services, that is, a mere user, they will have greater control and power to react against possible virtual threats. The DSA revolves around strengthening the protection of users’ fundamental rights, therefore giving them a privileged position in the virtual environment. It is necessary to list the reaction mechanisms recognized for “recipients of the service”:

  • The possibility of submitting a complaint for an infringement committed by the service provider, with the coordinator of digital services in your Member State, in light of article 53 of the DSA;
  • The right to be compensated for loss or damage in accordance with the provisions of article 54 of the DSA, in accordance with Union and national law of each Member State; and
  • The possibility of extrajudicial dispute resolution, through certified extrajudicial dispute resolution bodies – see. Article 21 of the DSA.

From the service provider’s point of view, it will be advisable to work towards increased compliance with the DSA, in order to be aware of and safeguard the new obligations to which they will be bound from February 17th, 2024. Among the other special obligations, he highlights due diligence obligations that will always apply to all online intermediary service providers, regardless of their size and category. These are:

  • Compliance with decisions to act against illegal content (article 9 DSA);
  • The provision of specific information (article 10 DSA);
  • Creation of specific points of contact;
  • Appointment of a legal representative);
  • Comply with the requirements relating to the “terms and conditions” set out in the DSA;
  • Make annual transparency reports available to the public.

The DSA thus constitutes a reinforcement of user rights, but also a reinforcement of the obligations of service providers. It is also, once again, an innovative step by the EU, even at a global level, which has shown itself to be quick in its attempt to legislate the “new” reality.