The European Commission published the draft text of the Digital Services Act (DSA) in December 2020. It is intended to reflect the significantly changed landscape since the E-Commerce Directive 2000/31/EC (E-Commerce Directive) was enacted 20 years ago. The DSA will be implemented as an EU Regulation and will largely uphold the current liability regime under the E-Commerce Directive. Like many other key legislative reforms in the Digital Single Economy, the DSA will apply where recipients of services are based in the EU, regardless of the service provider’s place of establishment. It contains new obligations in relation to digital services that connect consumers to goods, services and content as well as new procedures for faster removal of illegal content and measures for protecting users’ fundamental rights online.
Specific measures for intermediary services
There are provisions set out for intermediary service providers of:
A mere conduit service
A caching service, or
A hosting service in order to avoid liability for illegal content where certain specified conditions are met.
Providers of intermediary services based outside of the EU will be required to designate a single point of contact to communicate with Member State authorities. There will also be reporting obligations for removing and disabling information which is illegal or contrary to providers’ terms and conditions as well as mechanisms to allow third parties to notify of the presence of illegal content.
Additional provisions for providers of hosting services
Content moderation also comes in for focus. Notice and action mechanisms and a statement of reasons will need to be issued to recipients where a service provider removes or disables access to items.
Additional provisions which apply to all online platforms
There is a carve-out exception for micro or small enterprises that employ fewer than 50 persons and whose annual turnover does not exceed €10 million.
All other online platforms will be required to have an internal complaint-handling system to make decisions about illegal content or information violating the provider’s terms and conditions. In the event of a dispute, online platforms are required to engage in and inform complainants of the possibility of using an out-of-court settlement process. This will involve independent bodies in the relevant Member State reviewing the decisions of online platforms to take down content. Trusted flaggers, which are expert entities in reporting illegal content, may submit notices of illegal content as part of a notice and action procedure and the platform must process and decide upon it with priority and without delay.
In order to be awarded trusted flagger status by the Digital Services Coordinator of a Member State, the applicant will need to meet the following conditions:
It has particular expertise and competence for the purposes of detecting, identifying and notifying illegal content
It represents collective interests and is independent from any online platform, and
It carries out its activities for the purposes of submitting notices in a timely, diligent and objective manner.
The Digital Services Coordinator will revoke the status of the trusted flagger if it determines, following an investigation, that the entity no longer meets the criteria set out above.
Specific ‘know your business customer’ obligations will apply to online platforms regarding the traders on their platform. The aim is to ensure a safe, transparent and trustworthy environment for consumers and to discourage traders who sell unsafe or counterfeit goods. Traders will be required to submit proof of identification and self-certify to only offer products and services that comply with applicable EU laws. Online platforms will be required to keep information about the traders to help trace sellers of illegal goods or services.
Online platforms will also have to make reasonable efforts to assess the reliability of certain traceability information:
Appoint a single point of contact in the EU
Appoint a legal representative in the EU
Include information on any restrictions on use of the services in terms and conditions, and
Submit at least once a year a detailed report on content moderation
In addition, the DSA also requires online advertising transparency. Online platforms must give users immediate information on the sources of the advertisements they see online, including information on why an individual has been targeted with a specific advertisement. The liability safe harbour provisions are expressly excluded for online platforms where illegal content is presented in a way that creates the impression that such content is provided by the platform itself or under its control.
Online platforms are required to notify an enforcement authority on suspicion that serious criminal activity involving a threat to the life or safety of persons has taken place, is taking place, or is likely to take place.
Very large online platforms
Very large online platforms, which are those which reach 45 million users or more, will be required to:
Carry out risk assessments on the use and functioning of their services, and
Put mitigating measures in place to protect users from illegal content, goods and services
When these platforms recommend content, users will be able to modify the criteria used and choose not to receive personalised recommendations. Very large platforms will need to make information publicly available on:
The content of the advertisement
The natural or legal person on whose behalf the advertisement is displayed, and
The period during which the advertisement was displayed and this information must be retained for a year after the advertisement was last displayed on the platform
What happens next?
The Proposed text for the DSA is still at draft stage and has yet to be discussed with the European Parliament and the European Council. While the key protections afforded by the e-commerce directive are maintained, many organisations will no doubt be concerned around the increased reporting obligations which the DSA may introduce and this will likely receive significant discussion at EU Parliament level