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In a question-and-answer format guide, we address the main concerns and challenges posed by the Digital Services Act (DSA), applicable since February 17, 2024. This includes which digital services are affected, the liability regime, due diligence obligations, competent authorities, and the enforcement regime.
The Digital Services Act (DSA) is fully applicable since February 17, 2024. Its primary purpose is to regulate how intermediary companies of digital services (e.g., user content sharing, marketplaces, search engines, travel platforms, hotels, etc.) should collaborate in removing illegal content from the internet and protecting fundamental rights. Specifically, it (i) confirms and clarifies the liability regime introduced by the E-commerce directive; (ii) establishes new due diligence obligations; (iii) creates new monitoring and control mechanisms; and (iv) imposes a new enforcement regime.
It is an evolution of the principles introduced at the beginning of the millennium by the E-commerce Directive (in Spain, the Law of Information Society Services), which fundamentally remain applicable. By taking the form of a regulation, it reduces the risk of regulatory fragmentation and harmonizes increasingly scattered regulations, thereby contributing to the cohesion of the single market.
Thus, the general system of ex-post liability for providers of intermediary services is maintained. They will only be responsible for illegal content uploaded by their users if they have actual knowledge that it is indeed illegal content. To facilitate these complaints, providers are required to implement notice and action mechanisms. For example, a brand owner can notify a digital marketplace to remove counterfeit products. Providers are also required to introduce appeal mechanisms and transparency reports.
The main innovation of the DSA is the establishment of due diligence obligations, which will be more burdensome depending on the type of services and the size of the provider. The strictest obligations apply to very large online platforms and search engines, i.e., with more than 45 million users.
The penalties imposed are substantial, as they can reach up to 6% of the provider's annual global turnover, which undoubtedly serves as a strong incentive for compliance.
Consult the complete guide here or access the section that interests you the most:
- Module A: Which digital services are affected by the DSA?
- Module B: Liability regime
- Module C: Due diligence obligations
- Module D: Competent authorities and enforcement regime