Digital Services Act: the regulator of the digital world for a safer Europe.

Welcome to the era of the Digital Services Act, the new regulation reshaping the digital landscape in Europe. This article details the key issues raised by this major piece of legislation, from the obligations of online platforms to consumer protection. Discover how Europe is equipping itself with powerful means to hold web players accountable and to guarantee a safer and more transparent digital experience for everyone. If you wish to engage a lawyer specialising in competition law, contact me!

1. The Digital Services Act (DSA): a new era for digital regulation in Europe

Introduction to the DSA: key dates and parties concerned

The Regulation on Digital Services, more commonly known as the DSA, was finally adopted by the European Parliament in July 2022 and approved by the Council of the EU on 4 October 2022. It applies to all online intermediaries offering goods, content or services on the European market, whether those intermediaries are established in Europe or elsewhere (mere conduit services, caching services, hosting services). The text concerns in particular hosting providers, search engines, social networks and online marketplaces. These operators are subject to obligations proportionate to their size and audience: platforms and search engines reaching more than 45 million monthly active users in the Union, classified as very large platforms and very large search engines, are thus subject to additional obligations. To ensure that the rules laid down by the regulation are proportionate, micro and small enterprises (fewer than 50 employees and less than EUR 10 million in annual turnover) that do not reach the threshold of 45 million monthly active users are exempt from part of the obligations under the text. The DSA will apply from February 2024, except for very large online platforms and very large search engines, which will be concerned as early as 2023. The European Commission still has to adopt delegated acts.

The main objectives of the DSA regulation

The DSA seeks to establish a set of rules to hold digital platforms accountable and to combat the dissemination of illegal or harmful content (hateful, child pornographic or counterfeit content). Its objectives are to protect European internet users and their fundamental rights, to help small EU businesses grow, to strengthen democratic oversight and to mitigate systemic risks. The project also contains provisions to align French law with the regulation known as the Digital Markets Act, or DMA - Regulation (EU) 2022/1925 of 14 September 2022, which supplements the e-commerce directive, while reaffirming the latter's key principles, namely (i) the limited liability of hosting providers and (ii) the prohibition of a general monitoring obligation, together with the country-of-origin principle referred to above.

2. The DSA and the fight against illegal content: holding online platforms accountable

How the DSA aims to make online platforms more accountable

Online platforms will have to provide internet users with a tool enabling them to easily report illegal content. They will be required to remove such content promptly once a report has been made. In addition, digital platforms will have to respond as quickly as possible to orders to act against, or to provide information about, illegal content issued by national authorities, provided that the latter comply with certain conditions defined by the DSA regarding the information to be transmitted.

The concept of "trusted flaggers" and their role in content control

In this context, large online platforms will have to cooperate with "trusted flaggers", entities or organisations selected for their expertise and skills. Their notifications will be processed as a priority by the digital platforms.

3. Transparency and consumer protection: the DSA's requirements for marketplaces

The verification and transparency obligations for marketplaces

Marketplaces will have to provide a single point of contact for dealings with the administration and the Commission, as well as another single point of contact for the recipients of the services. Marketplaces will have to better trace the sellers offering products or services on their platform and better inform consumers about them. Intermediary service providers not established in the EU will also have to appoint a legal representative in the EU.

The new rights for European consumers

Platforms will have to make their content moderation decisions more transparent and put in place an internal complaint-handling system. Information on content management will have to be set out directly in the terms and conditions of intermediary service providers. These operators will have to provide the necessary justification for (i) the suspension of payments, (ii) the suspension or termination of the service, and (iii) the suspension or deletion of the account. A complaint system will have to be put in place for large online platforms.

4. The DSA and the challenge of content moderation: towards transparency of algorithms

The need for a more transparent complaint-handling system

Users will be able to challenge the decision to suspend or terminate their account and turn to independent bodies or to their national courts.

The new rules on explaining how algorithms work

Platforms will have to explain how the algorithms they use to recommend certain advertising content operate. Very large platforms will be required to offer a content recommendation system that is not based on profiling.

5. Personal data protection strengthened by the DSA

Advertising will have to be identified as such on large platforms, as already exists in France. Ban on targeted advertising aimed at minors Platforms will no longer be able to target minors with advertising based on profiling, whether for products, services or content. The new rules on advertising based on sensitive data Advertising based on sensitive categories of data, such as health or sexual orientation, will be strictly regulated.

6. Managing public security crises: the key role of large platforms and search engines

Analysis of systemic risks and mitigation measures Very large platforms will be required to carry out an annual systemic risk assessment and to put in place mitigation measures. Responding to crises affecting public security or public health Search engines will have to demonstrate cooperation in the event of a crisis affecting public security or public health, in particular with regard to disinformation.

7. The DSA: monitoring mechanisms and penalties for online platforms

The role of the digital services coordinators Each EU Member State will appoint a digital services coordinator, who will monitor compliance with the DSA. The possible penalties for non-compliance with the DSA In the event of non-compliance with the obligations under the DSA, penalties may be imposed, of up to 6% of the worldwide annual turnover of the company concerned.

8. The DSA and small businesses: exemption from certain obligations

The specific obligations for micro and small enterprises Small enterprises and micro-enterprises will be exempt from certain DSA obligations so as not to hamper their development. The impact of the DSA on the digital ecosystem of small businesses in Europe Despite certain exemptions, the DSA will nonetheless affect the ecosystem of small businesses in Europe, by fostering greater accountability and better transparency in digital exchanges.

9. Conclusions

The obligations are numerous and depend on the size of each provider. It is therefore advisable to carry out an analysis of the obligations affecting each category of operator and of the obligations and processes to be implemented. I can assist you with this approach and carry out the transfer of information to your operational teams.