Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act or DSA) is a piece of legislation recently adopted at EU level as part of a package of legislation aimed at standardising the rules for digital service providers operating in the single market. Its main objective is to prevent illegal and harmful online activities and the spread of misinformation. The DSA focuses on protecting consumers and ensuring a safe digital environment and imposes obligations on operators according to their role in providing intermediary services in the European internal market.
The scope of the DSA includes: (i) intermediary service providers; (ii) hosting providers; (iii) online platforms; and (iv) very large online platforms (VLOPs) and very large online search engines (VLOSEs). Those platforms and online search engines that fall into the "very large" category have already been specifically named by the European Commission. To the latter, the DSA already applies from end of 2023. As regards the other service providers, the DSA will take effect from 17 February 2024.
Leaving aside the situation of VLOP and VLOSE (on which the DSA imposes the most onerous obligations), other intermediary service providers are imposed obligations according to their role in the market. Below we have selected some general issues to consider, with the caveat that each situation must be treated separately and, in a manner, tailored to the activity carried out by the provider in question.
Conditioned exemption of liability
As per the DSA, the service provider shall not be liable for the information stored at the request of a recipient of the service, on one of the following conditions: [1] (a) the provider does not have actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal content is apparent; or (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the illegal content.
The condition mentioned under (a) above shall not apply where the recipient of the service is acting under the authority or the control of the provider and also with respect to the liability under consumer protection law of online platforms that allow consumers to conclude distance contracts with traders, where such an online platform presents the specific item of information or otherwise enables the specific transaction at issue in a way that would lead an average consumer to believe that the information, or the product or service that is the object of the transaction, is provided either by the online platform itself or by a recipient of the service who is acting under its authority or control.
It should be noted that the DSA does not impose any general obligation to monitor the information which providers of intermediary services transmit or store, nor actively to seek facts or circumstances indicating illegal activity shall be imposed on those providers. [2]
The DSA provides for the following obligations applicable to intermediary service providers upon receipt of an order from a public authority:
To act against illegal content/activity; [3]
To provide the authority with relevant information about the illegal content/activity; [4]
To inform the authority of how the order has been acted upon, stating whether and when the order has been acted upon; [5]
To inform the recipient of the service concerned of the order received and how the order was acted upon. This information provided to the addressee of the service will include a statement of reasons, possible remedies, and a description of the territorial scope of the order. [6]
Due diligence obligations applicable to providers of intermediary services
The following specific due diligence obligations apply to intermediary service providers:
To designate a single point of contact that allows them to communicate directly, by electronic means, with the authorities set out in the DSA; [7]
To designate a single point of contact allowing the recipient of the service to communicate directly and rapidly with the provider, by electronic means, but also allowing the recipients of the service to choose means of communication which do not rely exclusively on automated tools; [8]
To include in the general conditions of use information on any restrictions they impose on the use of their service in relation to information provided by recipients of the service. Such information will include information on the policies, procedures, measures and tools used for the purpose of content moderation, including algorithmic decision making and human verification, as well as on the rules of procedure of the internal complaints handling system; [9]
To make available to the public, in a machine-readable format and in an easily accessible manner, at least once a year, clear and understandable reports on any content moderation they have carried out during the relevant period. [10]
To be noted that some of the obligations laid down for intermediary service providers do not apply to SMEs that are not very large online platforms.[11]
Application of the DSA in Romania
In Romania, the competent authority for digital services is the National Authority for Management and Regulation in Communications of Romania (ANCOM). The draft law on the establishment of measures for the implementation of DSA is currently in the legislative process in the Romanian Parliament, with an expected adoption date of 22 March 2024, according to information available on the website of the Chamber of Deputies at the time of this article. How the DSA will be applied in Romania remains to be seen, starting with the new text of the law, and continuing with the decisions to be adopted by ANCOM.
[1] Art. 6 DSA
[2] Art. 8 DSA.
[3] Art. 9 (1) DSA
[4] Art. 10 DSA
[5] Art. 9(1) DSA
[6] Art. 9 (5) DSA
[7] Art. 11 DSA
[8] Art. 12 DSA
[9] Art. 14 DSA
[10] Art. 15 DSA
[11] Art. 15(2) DSA.