On Tuesday December 15th, 2020, the European Commission published two draft regulations, one concerning digital services (known as the “Digital Services Act”) and the other digital markets (known as the “Digital Markets Act”).
These two draft regulations, which are expected to enter into force by 2022, aim to propose a comprehensive set of new rules that will apply to all digital services, including social networks, online marketplaces and any type of online platform active in the European Union (hereafter “EU”).These regulations are the centrepieces of the European digital strategy, and will impact all numerical organisations and activities.
The DSA will impact numerical services in two main ways:
- New substantive obligations imposed on intermediate digital services providers
One of the major contributions of the DSA is to redefine intermediate digital services providers’ liability – intermediaries as diverse as Internet service providers, “mere conduit”, “caching” and “hosting” services providers, online platforms and very large online platforms are affected by these new prescriptions.
Diverse obligations will be imposed on all of these intermediaries; providers of intermediary services shall notably (i) Establish a single point of contact allowing for direct communication, by electronic means, with the UE’s and Member States’ authorities (article 10 of the DSA’s draft); (ii) When the intermediary does not have an establishment in the Union but offers services in the Union: Designate, in writing, a legal or natural person as their legal representative in one of the Member States where the provider offers its services (article 11 of the DSA’s draft); (iii) Include information on any restrictions that they impose in relation to the use of their service in respect of information provided by the recipients of the service, in their terms and conditions (article 12 of the DSA’s draft); (iv) Publish, at least once a year, clear, easily comprehensible and detailed reports on any content moderation they engaged in during the relevant period (article 13 of the DSA’s draft).
More severe obligations will also be applicable to providers of hosting services, including online platforms. Providers of hosting services shall notably: (i) Put mechanisms in place to allow any individual or entity to notify them of the presence on their service of specific items of information that the individual or entity considers to be illegal content (article 14 of the DSA’s draft); (ii) Process any notices that they receive under these mechanisms, and take their decisions in respect of the information to which the notices relate, in a timely, diligent and objective manner (same article); (iii) Where a provider of hosting services decides to remove or disable access to specific items of information provided by the recipients of the service: Inform the recipient, at the latest at the time of the removal or disabling of access, of the decision and provide a clear and specific statement of reasons for that decision (article 15 of the DSA’s draft).
Additional provisions will also be applicable to online platforms and very large online platforms, notably obligations for very large online platforms to manage systemic risks (articles 25 et seq. of the DSA’s draft).
Each and every intermediate digital services provider should begin to implement these measures to ensure due compliance when the DSA comes into force.
- Due diligence obligations to create standards, codes of conducts and crisis protocols
The DSA imposes due diligence obligations on the whole of the numerical services providers, to create (i) standards (article 34 of the DSA’s draft : « The Commission shall support and promote the development and implementation of voluntary industry standards set by relevant European and international standardisation bodies »), (ii) codes of conduct (article 35 of the DSA’s draft: “The Commission and the Board shall encourage and facilitate the drawing up of codes of conduct at Union level to contribute to the proper application of this Regulation”) – especially for online advertising (beyond the requirements of articles 24 and 30 of the DSA’s draft) (article 36 of the DSA’s draft: “The Commission shall encourage and facilitate the drawing up of codes of conduct at Union level (…) to contribute to further transparency in online advertising”), and (iii) crisis protocols for addressing crisis situations strictly limited to extraordinary circumstances affecting public security or public health (article 37 of the DSA’s draft).
Our Law firm and its Team of IT law specialists will be happy to assist you regarding the implementation of these new prescriptions and any legal issue you may face in that regard.
By Marie-Alix André, Eva Baliner-Poggi and the IP/IT Team
This post is also available in: French