Digital service in the EU: legal aspects

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Recent Digital Services Act is aimed at ringing transparency and accountability of platforms and search engines while giving consumers control over online operations. The EU adopts modern legal framework that ensures the safety of online users, establishes governance with the protection of fundamental rights and maintains fair and open online platform structures.   

     Recent European legal regulations on digital service (adopted at the end of April 2023) include 17 large online platforms and 2 very large search engines with about 45 million monthly active users in both services. In this way, the EU adopts modern legal framework that ensures the safety of online users, establishes governance with the protection of fundamental rights and maintains fair and open online platform structures.
Present “transparency measures” around the EU-wide digital services’ regulation has started with 19 very large online platforms and search engines to fully comply with the special obligations that the Digital Services Act imposes on them. Among very large online platforms, VLOPs are: Alibaba, AliExpress, Amazon Store, Apple AppStore, Booking.com, Facebook, 3 Google platforms (play, maps and shopping), Instagram, LinkedIn, Pinterest, Snapchat, TikTok, Twitter, Wikipedia, YouTube and Zalando. Among two very large online search engines, VLOSEs are: Bing and Google Search.

DSA’s history
It happened historically that the e-Commerce Directive, adopted in 2000, has been the main legal framework for the provision of digital services in the EU. The directive is a horizontal legal framework that has been the cornerstone for regulating digital services in the European single market.

Much has changed in more than 20 years and the rules needed to be upgraded. Online platforms have created significant benefits for consumers and innovation, and have facilitated cross-border trading within and outside the Union and opened new opportunities to a variety of European businesses and traders. At the same time, they are abused for disseminating illegal content, or selling illegal goods or services online. Some very large players have emerged as quasi-public spaces for information sharing and online trade. They pose particular risks for users’ rights, information flows and public participation. In addition, the e-Commerce Directive did not specify any cooperation mechanism between authorities. The “Country of Origin” principle meant that the supervision was entrusted to the country of establishment.
The Digital Services Act builds on the rules of the e-Commerce Directive, and addresses the particular issues emerging around online intermediaries. EU states have regulated these services differently, creating barriers for smaller companies looking to expand and scale up across the EU and resulting in different levels of protection for European citizens.
More in: https://digital-strategy.ec.europa.eu/en/policies/safer-online

     At the end of 2020, the Commission made the proposal on the DSA together with the proposal on the Digital Markets Act, DMA as a comprehensive framework to ensure a safer and fairer EU-wide digital space. In April 2022, a political agreement was reached by the EU co-legislators on the DSA’s content, which entered into force on 16 November 2022.
The DSA applies to all digital services that connect consumers to goods, services, or content. It creates comprehensive new obligations for online platforms to reduce harms and counter risks online, introduces strong protections for users’ rights online, and places digital platforms under a unique new transparency and accountability framework.
It was designed as a single and uniform EU-wide set of rules aimed to give private users and businesses legal certainty working in the European single market. Thus, the DSA has become a first of its kind regulatory toolbox –both globally and in Europe – setting international benchmarks for a regulatory approach to online intermediaries.
New EU Digital Services Act, DSA has had a special role in the European digital agenda: it is not replacing sectoral digital legislation; the DSA sets the horizontal rules covering all services and all types of illegal content, including goods or services. It does not replace or amend, but it complements sector-specific legislation such as the Audiovisual Media Services Directive (AVMSD), the Directive on Copyright in the Digital Single Market, the Consumer Protection Acquis, or the Proposal for a Regulation on preventing the dissemination of terrorist content online.
Reference to the DSA Regulation in: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.277.01.0001.01.ENG&toc=OJ%3AL%3A2022%3A277%3ATOC.

     Therefore, with the Digital Services Act, unnecessary legal burdens due to different laws will be lifted, fostering a better environment for innovation, growth and competitiveness, and facilitating the scaling up of smaller platforms, SMEs and start-ups. At the same time, it will equally protect all users in the EU, both as regards their safety from illegal goods, content or services and as regards their fundamental rights.
Reference to: https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_2348

EU-wide digital service: overview
European digital services include a large category of online services, from simple websites to internet infrastructure services and online platforms. The rules specified in the DSA primarily concern online intermediaries and platforms: e.g. online marketplaces, social networks, content-sharing platforms, app stores, and online travel and accommodation platforms.
Two recently adopted EU-wide laws regulate digital services: the Digital Services Act (DSA) and the Digital Market Act (DMA); they have two main goals: a) creating a safer digital space in which the fundamental rights of all users of digital services are protected, and b) establishing a level playing field to foster innovation, growth and competitiveness (both in the European Single Market and globally).
The DMA includes rules that govern gatekeeper online platforms; the latter are the digital platforms playing “systemic role” in the EU-wide internal market functioning as bottlenecks between businesses and consumers for important digital services. Some of these services are also covered in the Digital Services Act, but for different reasons and with different types of provisions.
The DSA has been published in the Official Journal (27 October 2022) and came into force on 16 November 2022. The DSA will be directly applicable in all EU-27 member states and will apply from 1 January 2024. The effect for online platforms: they must publish their number of active users by 17 February 2023; if the platform or a search engine has more than 45 million users (10% of the population in Europe), the Commission will designate the service as a very large online platform or a very large online search engine. These services will have 4 months to comply with the obligations of the DSA, which includes carrying out and providing the Commission with their first annual risk assessment. The EU member states will have to appoint Digital Services Coordinators by 17 February 2024; besides, platforms with less than 45 million active users have to comply with all the DSA rules too.
Reference to: https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package

DSA’s supervisory architecture
The DSA will be enforced through a pan-European supervisory architecture. While the Commission is the competent authority for supervising the designated platforms and search engines, it will work in close cooperation with the Digital Services Coordinators in the supervisory framework established by the DSA. These national authorities, which are responsible as well for the supervision of smaller platforms and search engines, need to be established by EU Member States by 17 February 2024. That same date is also the deadline by which all other platforms must comply with their obligations under the DSA and provide their users with protection and safeguards laid down in the DSA.
To enforce the DSA, the Commission is also bolstering its expertise with in-house and external multidisciplinary knowledge and recently launched the European Centre for Algorithmic Transparency (ECAT). It will provide support with assessments as to whether the functioning of algorithmic systems is in line with the risk management obligations. The Commission is also setting up a digital enforcement ecosystem, bringing together expertise from all relevant sectors.

     More information in: = EU Official Journal text on the DSA; = Digital Services Act Q&A; = Digital Services Act package; = Questions and answers on the counting user numbers.

     Supplement. Other legal acts concerning “online information”:
= Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain member states’ provisions in law, regulation or administrative action concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).
= Regulation 2019/1148 of the European Parliament and of the Council of 20 June 2019 on the marketing and use of explosives precursors, amending Regulation (EC) No 1907/2006 and repealing Regulation (EU) No 98/2013 (OJ L 186, 11.7.2019, p. 1).
= Regulation 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, 11.7.2019, p. 57).
= Regulation 2021/784 of the European Parliament and of the Council of 29 April 2021 on addressing the dissemination of the terrorist content online (OJ L 172, 17.5.2021, p. 79).
= Regulation 2021/1232 of the European Parliament and of the Council of 14 July 2021 regarding the use of technologies by providers of independent interpersonal communications services for the processing of personal and other data for the purpose of combating online child sexual abuse (OJ L 274, 30.7.2021, p. 41).
= Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).
= Regulation 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws.
= Regulation 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products. In: OJ L 169, 25.6.2019, p. 1.
= Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (OJ L 11, 15.1.2002, p. 4).

 

 

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