Date: 17th May 2022
Digital Services Act (DSA): New landmark rules to limit and affront the spread of illegal content online and protect people’s fundamental rights in the digital sphere
The European Parliament and EU member states reached a so called “swift political agreement” on 23.04.2022 on the Digital Services Act (DSA), a landmark piece of legislation which aims to address illegal and harmful content by actually obliging platforms to rapidly take it down, through a series of proceedings and safety policies, based on the principle of “what is illegal offline must also be illegal online”.
The Digital Services Act was proposed by the European Commission on 15 December 2020 to upgrade rules governing digital services in the EU. DSA, along with DMA (Digital Markets Act) constitute the digital services package envisaged by the Commission to establish a common and modern legal framework to correspond to all new and upcoming challenged of the digital era.
According to the European Commission, the DSA shall aim to:
New era for the platforms: More responsible online platforms and marketplaces
Under the new rules, intermediary services, namely online platforms -such as social media and marketplaces- will have to take measures in order to protect their users from illegal content, goods and services. This new landscape is supported by the platforms, which are willing to be made even more transparent and accountable, focusing on maintaining the principles of the European digital single market, including safeguarding intermediary liability.
Such new rules shall include, amongst others, provisions regarding algorithmic accountability, through which the European Commission and the Member States will be able to access to the algorithms used for recommendations of very large online platforms, as well as imposing KYC obligations to online marketplaces so as to strengthen monitoring in order to prove that the information provided by traders is reliable (“Know Your Business Customer” principle) and make efforts to prevent illegal content appearing on their platforms. Moreover, new transparency obligations will allow users to be better informed about how content is recommended to them and to choose at least one option not based on profiling. Last but not least, large online platforms will have to assess and mitigate systemic risks and be subject to independent audits each year, as well as to limit any urgent threats on their platforms in special times of crisis for a period up to three months.
New era for the users: Towards a safer online space
The new rules are also user-orientated and in this respect, the main provisions shall include:
Penalties for non-compliers and compensation for users
Online platforms and search engines can be fined up to 6% of their worldwide turnover. In the case of very large online platforms (with more that 45 million users), the EU Commission will have exclusive power to demand compliance. On the other hand, recipients of digital services will have a right to seek damages or loss suffered due to infringements by platforms.
Ground of application of the new provisions
The legislation defines digital services as “a large category of online services, from simple websites to internet infrastructure services and online platforms”.
All digital services that conduct business in the EU are subject to the DSA, regardless of where the business is established (i.e., online marketplaces; social networks; app stores; online travel and accommodation platforms; cloud and web hosting services’ providers etc.).
According to EU’s announcements, the text will need to be finalized at technical level and verified by lawyer-linguists, before both Parliament and Council give their formal approval. Once this process is completed, it will come into force 20 days after its publication in the EU Official Journal and the rules will start to apply 15 months later.
From 23 to 27 May, a delegation from the EP’s Internal Market Committee will visit several company headquarters (Meta, Google, Apple and others) in Silicon Valley to discuss in person the Digital Services Act package, and other digital legislation in the pipeline, and hear the position of American companies, start-ups, academics and government officials.
In a nutshell, Digital Services Act’s goal being making the internet even safer, more transparent and accountable, while ensuring that European users, creators and businesses continue to benefit from an open web, is definitely one to be welcomed and highly supported by intermediary companies. It goes without saying that the highly challenging digital times demand extensive and effective measures towards transparency and protection of online users’ rights and data, thus, the answer to the question whether a new regulation is necessary, can be nothing but affirmative. The debate is based on the sensibility of the regulation, in order for all included parties’ rights and obligations to be preserved and promptly weighed in this objectively complex equation. Unintended consequences of the law remain one of the companies’ main concerns, while the possibly anticipated passing of Twitter on to private hands could lead to further financial and social consequences and side effects on the application of the new landmark rules.
The following factors need to be taken into consideration, in order for neither intermediary companies nor the users to suffer from the aforementioned unintended consequences. Clear rules and flexibility to innovate shall be one of the main aims of policy and decision makers, in order to provide a competitive digital marketplace that gives people and businesses in the EU access to the best products and services worldwide. In addition, harmonization of rules at the EU level shall contribute to the avoidance of the services being subject to inconsistent rules, different in each member state, complicating the operation of the EU single market. and allowing states to deviate from the main principles of DSA. Last but not at all least, the new legislation aiming to enable growth and protect free expression, including the intermediary liability regime and the prohibition on mandating general monitoring, is also welcome, as it brings the EU market one step closer to a new digital era, effectively affronting all its challenges.
It remains thus to be seen when, how and to what extend EU’s vision shall embrace and serve its actual purpose; as the law is being finalized and implemented, the details will truly matter and the role of policymakers working with all included parties including intermediary companies for that purpose will be crucial.
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