It has been some time already since the EU Digital Services Act (Regulation 2022/2065, DSA) was published, and since then, the discussions about Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs) have dominated the media coverage (see initial press release of European Commission here and coverage about VLOPs/VLOSEs petitions against categorization as VLOPs/VLOSEs here and here).
Smaller online service providers tend to forget that they may also face some new obligations under the DSA from 17 February 2024 onwards, but would be well advised to comply to avoid significant sanctions (e.g., fines of up to 6% of the global annual turnover or periodic penalty payments up to 5% of the global average daily turnover).
The following paragraphs provide a brief summary of the most relevant content of the DSA and will help online service providers to understand:
The DSA replaces or takes over parts of the EU Directive 2000/31/EC (eCommerce Directive), namely its provisions for liability for third-party content. Due to massive developments in the digital field, evolving use of online services, and new players entering the market or gaining relevance for our societies and lives, the European Union decided it was time to put in place a more contemporary set of rules taking into account these new developments, services, and stakeholders. Some of the provisions under the eCommerce Directive will continue to apply. Others were more or less copy and pasted from the eCommerce Directive (liability for third-party content). However, the DSA also lays a profound focus on transparency, due diligence, and general fairness principles, which results in a broad set of additional respective obligations with which every covered online service provider needs to comply. As the need for transparency and fairness varies depending on the types of service providers, the DSA follows a tiered approach:
For a more detailed analysis of the respective undertakings for each tier, please refer to our comprehensive publication on the DSA available here.
While certain provisions for VLOPs and VLOSEs already apply since November 2023, the broad set of obligations for the basis of online intermediary services will apply from 17 February 2024—about time to check again if you are well prepared.
Sounds a bit chaotic? Agreed, but we will try shed some light on the new obligations and who needs to do what.
The DSA applies to all providers of online intermediary services, which are defined as basically all of the below service categories offered to users (and not merely “consumers”) with a habitual residence in the EU. A seat or establishment of the service provider in the European Union is expressly not required.
(i.e., the transmission of information provided by a user to a communication network or granting a user access to such a communication network, e.g., the internet);
(i.e., the automated temporary storage of user information for the purpose of transmitting the information to other users faster on their request);