European Parliament and Council Reach Digital Regulation First with Provisional Agreement on The Digital Services Act

M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on E-TIPS™ For Deeth Williams Wall LLP on May 4, 2022.

On April 23, 2022, the European Parliament and Council reached a provisional political agreement on the Digital Services Act (DSA). Based on the principle that what is illegal offline should be illegal online, the DSA imposes digital regulations with the goal of stopping the spread of illegal content and ensuring the protection of users’ rights.

The rules set out in the DSA primarily apply to online intermediaries and platforms providing services in the European Union (EU), including online marketplaces, social networks, content-sharing platforms, and app stores. The legislation will impose obligations on regulated entities that are proportionate to the nature of their services and size of their user-base. For example, very large online platforms (VLOPs) and very large online search engines (VLOSEs) with more than 45 million active monthly users will have more stringent responsibilities than micro and small enterprises.

The DSA is set to impose a series of new requirements that will have a significant impact on online business:

  1. Online Marketplaces: The DSA will impose a duty of care on online marketplaces in relation to the sellers who list items or services for sale on the platforms. These marketplaces will also have to collect and display certain information in association with listings to better inform consumers.
  2. Risk Management: VLOPs and VLOSEs will be obligated to carry out an annual risk reduction analysis aimed at reducing risks associated with (i) the dissemination of illegal content; (ii) adverse effect on fundamental rights; (iii) the manipulation of services that affect democratic processes or public security; and (iv) adverse effects on gender-based violence, minors, and users’ health.
  3. Dark Patterns: The DSA will prohibit the use of confusing or deceptive user interfaces and practices that are aimed at misleading users.
  4. Recommendation Systems: To improve transparency, the DSA will mandate that VLOPs and VLOSEs offer systems for recommending content to users that is not based on their profiling. 
  5. Crisis Response Mechanism: Influenced by the conflict in Ukraine, the DSA allows the European Commission to analyze the impact of VLOPs and VLOSEs on a crisis that is affecting public health or security. Based on this analysis, the European Commission may put in place select measures for the respect of fundamental rights.
  6. Minors: Platforms will have to implement protection measures to ensure the online safety of minors, including prohibitions against targeted advertisements based on minors’ personal data.

The provisional agreement is subject to approval by the European Council and Parliament. Once adopted, the DSA will apply 15 months or from January 1, 2024, whichever is later, after entry into force. For the VLOPs and VLOSEs, the DSA will apply four months after their designation.

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