On October 27, 2022, the Digital Services Act (“DSA”) was published in the Official Journal of the EU, marking its formal adoption.[1] The DSA sets out new rules that apply to the distribution of user-generated online content. Unlike the DMA, which seeks to ensure the contestability of digital markets, the DSA seeks to improve user safety online and ensure accountability of platforms for the content that they transmit, host or publicly disseminate.
The DSA introduces a common base of obligations applicable to all intermediary services providers offering services to recipients in the EU, as well as additional obligations applicable to “very large online platforms” (“VLOPs”) and “very large online search engines” (“VLOSEs”).[2] The new set of rules concerns content moderation, due diligence, user information, and targeted advertising. The provisions on targeted advertising include the requirement to provide users of online platform services with a declaration as to whether the content they provide “is or contains commercial communications”.[3] They also include a ban on targeted advertising based on users’ sensitive personal data (e.g., sexual orientation, religion and ethnicity) and targeted advertising for minors.[4] VLOPs and VLOSEs will be required to offer users the choice not to receive recommendations based on profiling.[5] The enforcement of the common obligations is left to the EU Member States, which are to appoint a Digital Services Coordinator by February 17, 2024. The rules applicable to VLOPs and VLOSEs will be enforced by the Commission and will apply four months after the a provider is notified of its designation as a VLOP or a VLOSE.[6] The first designations of VLOPs and VLOSEs are expected in March or April 2023, as online platforms and search engines are required to publish their user numbers by February 17, 2023. The Commission and national Digital Services Coordinators can impose fines of up to 6% of the company’s worldwide turnover in the preceding fiscal year. An implementing regulation is expected before the end of the year.
[1] See Regulation 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). See also our April 2022 EU Competition Law Newsletter.
[2] VLOP and VLOSE are online platforms and search engines with above 45 million active users.
[3] Article 26 of the DSA.
[4] Article 28 of the DSA.
[5] Article 38 of the DSA.
[6] Articles 92 and 93 of the DSA.