The Digital Services Act enters into force today for the biggest platforms and search engines
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As of today, 25 August 2023, the obligations contained in the Digital Services Act (DSA) are now applicable to the biggest companies in the EU offering services that fall within the scope of the DSA, inter alia Meta, Google, Microsoft, TikTok, YouTube, etc. Platforms and search engines that count more than 45 million monthly active users have been identified as posing a systemic threat to the digital internal market’s security. The European Commission has as such designated 17 platforms and two search engines that must as of today comply with the obligations comprised in the DSA.
The DSA contains diligence and transparency obligations applicable to most actors providing online intermediary IT-services, such as Internet providers, social media providers, content-sharing platforms, or cloud providers. Some of these online intermediaries have however acquired a particular status because of their influence and impact on the market. The last few years have seen an increase in incidents involving major online platforms, such as the rise of privacy violation cases, the proliferation of illegal content such as disinformation and hate speech on social networks, and a general growing concern about the monopolistic power of very large players, specifically American ones. The recurrent scandals involving Facebook and Twitter, for instance, are a prime example of the impact these huge platforms have on the society. These repeated scandals have led the European Commission to decide to include those large intermediaries in the fight against illegal content online and for the preservation of the fundamental rights and freedoms of users throughout the European Union for efficiency reasons. While maintaining the existing liability exemption framework for the illegal content itself, online intermediaries can now be held responsible in case they have failed to put in place the mandatory ex ante risk-mitigating measures.
Since today, Amazon, Pinterest, Snapchat & Cie will therefore have to be in compliance with numerous obligations listed in the DSA: for instance, online platforms are now prohibited from presenting advertising based on profiling to minors, as long as they are reasonably certain that the user is a minor; they need to have in place a mechanism allowing users to submit notices concerning illegal content and to challenge the decisions issued after receipt of such notices; they need also to accompany any moderation decision with a clear and specific statement of reason. They will also have to regularly analyse the effects of their activities on the security of the Internet as well as on the fundamental rights of the users of their services.
The remaining companies offering services falling within the scope of the DSA will need to be in compliance with its obligations by 17 February 2024. At Fondia, we have several experts from our Contracts & Technology practice who can help you determine whether the DSA applies to your company. Contact us at fondia@fondia.com for a first assessment.