Europe: DSA nears legislative journey end
October 5, 2022
By Colin Mann
The Council of the European Union says it has taken an important step to ensure a safer online environment by approving the Digital Services Act (DSA). The DSA protects the digital space against the spread of illegal content and ensures the protection of users’ fundamental rights.
“The Digital Services Act is one of the EU’s most ground-breaking horizontal regulations and I am convinced it has the potential to become the ‘gold standard’ for other regulators in the world,” declared Jozef Síkela, Minister for Industry and Trade, Czech Republic. “By setting new standards for a safer and more accountable online environment, the DSA marks the beginning of a new relationship between online platforms and users and regulators in the European Union and beyond.”
The DSA is considered a world first in the field of digital regulation: no other legislative act has this level of ambition as regards regulating platforms and online supervision while preserving the core principles of the internal market.
The DSA defines clear responsibilities and accountability for providers of intermediary services, such as social media, online marketplaces, very large online platforms (VLOPs) and very large online search engines (VLOSEs). The rules are designed asymmetrically, which means that larger intermediary services with significant societal impact (VLOPs and VLOSEs) are subject to stricter rules.
Under the DSA, platforms will not only have to be more transparent, but will also be held accountable for their role in disseminating illegal and harmful content. Amongst other things, the DSA:
- lays down special obligations for online marketplaces in order to combat the online sale of illegal products and services;
- introduces measures to counter illegal content online and obligations for platforms to react quickly, while respecting fundamental rights;
- better protects minors online by prohibiting platforms from using targeted advertising based on the use of minors’ personal data as defined in EU law;
- imposes certain limits on the presentation of advertising and on the use of sensitive personal data for targeted advertising, including gender, race and religion;
- bans misleading interfaces known as ‘dark patterns’ and practices aimed at misleading
Stricter rules apply for very large online platforms and search engines (VLOPs and VLOSEs), which will have to:
- offer users a system for recommending content that is not based on profiling;
- analyse the systemic risks they create – risks related to the dissemination of illegal content, negative effects on fundamental rights, on electoral processes and on gender-based violence or mental health.
In the context of the Russian aggression in Ukraine and the particular impact on the manipulation of online information, the DSA introduces a crisis response mechanism. This mechanism will make it possible to analyse the impact of the activities of VLOPs and VLOSEs on the crisis in question and rapidly decide on proportionate and effective measures to ensure the respect of fundamental rights.
The EU’s legal framework for digital services had not changed since the adoption of the e-commerce directive in 2000. In the meantime, digital technologies, business models and services have changed at an unprecedented pace. To keep up with this pace, the European Commission presented a digital services package comprising the Digital Services Act (DSA) and the Digital Markets Act (DMA) in December 2020.
The digital services package is the EU’s response to the need to regulate the digital space. Together, the DSA and the DMA define a framework adapted to the economic and democratic footprint of digital giants and introduce measures to protect users while supporting innovation in the digital economy.
On November 25th 2021, less than a year after the start of negotiations in the Council, member states unanimously agreed on the Council’s position on the DSA.
On April 23rd 2022, the Council and the European Parliament reached a provisional agreement on the DSA, which was endorsed by EU member states’ representatives on June 15th 2022.
The provisional agreement on the DMA was reached by the Council and the European Parliament on March 24th 2022 and signed by the Council and the European Parliament on September 15th 2022. The DMA will be published in the Official Journal of the European Union on October 13th 2022.
Following the Council’s approval of the European Parliament’s position, the legislative act was adopted.
After being signed by the President of the European Parliament and the President of the Council, it will be published in the Official Journal of the European Union and will start to apply fifteen months after its entry into force.