Prof. Damien Roche, Technological University Dublin, Ireland
The Digital Services Act (DSA) is an important piece of legislation from the European Union. It requires technological companies to control and moderate online activity. On Friday, the twenty second of April 2022, an agreement was finalized on the European Union’s Digital Services Act following lengthy negotiation.
The European Commission President Ursula von der Leyen stated:
“The DSA will upgrade the ground rules for all online services in the European Union. It will ensure
that the online environment remains a safe space, safeguarding freedom of expression and
opportunities for digital businesses. It gives practical effect to the principle that what is illegal offline
should be illegal online”.
Objectives of the DSA
The DSA has two main objectives:
Firstly, the establishment of a safer digital environment and the protection of the fundamental rights of all users of digital services and secondly, within the European Single Market to develop a fair and transparent approach that will have the effect of promoting innovation, competitiveness, and growth.
Definition of digital services
Digital services include a large range of online services. These range from simple to more complex websites, internet infrastructural service provision, and to online platforms ranging in size.
The DSA rules concern online intermediaries and platform such as, social networks, online marketplaces, applications stores, online travel, content-sharing platforms, and accommodation platforms.
The need for better regulation
We need to ensure that European legislation evolves to better regulate the widespread development of digital services and will continue to promote new approaches to communicate, and access information online.
The EU’s internal market has grown in efficiency and online platforms have created significant benefits for consumers and promoted cross-border trading within the EU. This has helped expansion and access to new markets. A major concern is the spread of false information “fake news” and the sale of illegal goods and services online, and content online. This behavior can have a major impact on the fundamental rights of consumers.
A few large platforms now have considerable influence in the digital economy which has resulted in a reduction in choice and unfair treatment of the consumer.
The EU needs a modern legal framework that will protect the safety of users online and improve corporate governance while protecting the fundamental rights of EU citizens. The EU needs to promote a fair and open online platform environment.
The Commission made several proposals as far back as 2020 and on 23 April 2022 a political agreement concluded leading to the passing of the Digital Services Act.
Main obligations and changes proposed
The main obligations and changes proposed are set out in this article and provides rules for content moderation, illegal products, systemic risks, and accountability for the operation of platforms.
Ban of targeted advertising based on sensitive data
The Digital Services Act (DSA) aims to eliminate targeted advertising that is based on sensitive information e.g., Ethnic origin, political persuasion, religious affiliation, membership of a trade’s union, sexual identity and expression and health factors.
It will ban practices which are aimed at misleading users and from using deceptive behavior that may influence consumers and will scrutinize the treatment by large online platforms on a major crisis. e.g., Global pandemic, Russia-Ukraine war, Climate change, possible Elections coverage etc.
Users will be empowered to seek compensation where platforms fail to comply with their obligations under the DSA.
Online search engines
The DSA will have oversight of large online search engines that have greater than 45 million EU members. The specific obligations under the DSA relate to:
The elimination of illegal content online
Audits of risk management systems undertaken by an independent auditor.
The recommendation of content to consumers that is not based on the profile of the consumer.
Targeted advertising to minors
The DSA will ban platforms from targeting advertising based where it is based on the use of the personal data of a minor. This will include a ban on seeking additional personal information for age verification purposes. Article 9(1), Reg 2016/679.
A clearer EU-wide definition of a “minor” is required as there is no EU-wide consensus on the definition of a “minor” and this currently varies between the member states. What methods will platforms be permitted to ascertain the age of a user.
The impact of the DSA for citizens of the European Union
The objective is to improve the digital environment for users and the DSA bans illegal activities online to protect citizens from harm while preserving fundamental rights, including the right to privacy and freedom of expression. The platforms decide the type of content or user account to cancel. Greater transparency is needed, and users will be permitted to challenge any such decisions.
Hate speech and false information or fake news
Online platforms will be exempt from liability relating to any content that is posted by users, subject to their obligations concerning risk management. Users will have improved methods in order of reporting any illegal content that appears on social media. Penalties and obligations to respond within stated time restrictions will apply to platforms. While the rules governing what is illegal and what is regarded as harmful content are to be found in both EU and in National legal frameworks, the DSA will establish a more robust Code of Practice.
Further steps
It is intended that the DSA will be implemented by way of an EU Regulation and will therefore be directly applicable in its effect in each EU member state. The Regulation will apply regardless of where the service provider is established, whether within or outside the EU. The DSA will apply where recipients of services are based in the European Union, irrespective of the service provider’s place of establishment.
The DSA is due to be operative from the first of January 2024 and will apply to what are regarded as very large online platforms and to what are regarded as very large search engines. It will apply to these platforms and search engines four months following them being designated as such.
References
Press remarks by President von der Leyen on the Commission’s new strategy: Shaping Europe’s Digital Future, 20 February 2020.
https://ec.europa.eu/commission/presscorner/detail/nl/speech_20_294
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=COM%3A2020%3A825%3AFIN
