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The Incoming Digital Services Act – Social Media



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Following a deal reached between the European Parliament and the
European Council on 23 April and 24
March
respectively, on 5 July 2022, the
European Parliament approved the final text of the Digital Markets
Act (“DMA“) and the Digital Services Act
(“DSA“).

Alongside the DMA, the DSA focuses on improving safety,
protecting fundamental rights in digital environments and ensuring
a level playing field in the European Single Market. The DSA and
DMA aim to harmonise standards and increase accountability of
online services.

In this article, we describe the main features of the incoming
DSA and briefly analyse its interaction with the e-Commerce
Directive in relation to the liability of online
intermediaries.

The DSA:

The DSA lays out clear obligations for digital service providers
(marketplaces or social media) to monitor and tackle illegal
content, online disinformation and other societal risks. These
requirements are proportionate to the risks the platform poses to
society.

The new obligations under the DSA cover the following:

  • Measures to counter illegal content online and obligations for
    platforms to react quickly and proportionately (having regard to
    both fundamental rights, the freedom of expression and data
    protection);

  • More robust checks on online traders to ensure products and
    services are safe (such as performing random checks on whether
    illegal content resurfaces);

  • Increased transparency and accountability of platforms (such
    ensuring clear information about content moderation or the use of
    algorithms for recommending content is provided);

  • Banning misleading practices, targeted advertising that targets
    children and ads based on sensitive data, and misleading practices
    aimed at manipulating users’ choices.

  • Stricter obligations will be imposed on large online platforms
    and search engines (with 45 million or more monthly users), and the
    European Commission will ensure enforcement of such obligations.
    Such stricter obligations will include preventing systemic risks
    (such as the dissemination of illegal content, adverse effects on
    fundamental rights, on electoral processes and on gender-based
    violence or mental health); being subject to independent audits;
    providing users with the choice to not receive recommendations
    based on profiling; and providing authorities and vetted
    researchers with access to their data and algorithms.

DSA Timeline:

Once formally adopted by the European Council in
September 2022, the DSA will be published in the
EU Official Journal, enter into force 20 days later. The DSA will
be directly applicable across the EU and will apply fifteen
months
or from 1 January 2024 (whichever
comes later) after the entry into force. Large online platforms
will have to comply with their obligations four months after they
have been designated as such by the European Commission.

Interaction between the DSA and the e-Commerce
Directive

The DSA will build on the e-Commerce Directive to address new
challenges online.

While the e-Commerce Directive will remain in force, the DSA
will address the changes and the challenges that have arisen since
the implementation of the e-Commerce Directive, especially in
relation to online intermediaries.

The DSA will incorporate and update the E-Commerce Directive
rules and obligations for the limitation of liability of
intermediary services providers, to ensure innovative services can
continue to emerge and scale up in the single market. It will
retain the conditional immunity from liability for hosting
providers and the prohibition of general monitoring or active
fact-finding obligations.

The DSA will nevertheless introduce new requirements for
intermediaries, such as asymmetric and cumulative obligations for
large online platforms and search engines to prevent abuse of their
systems, emphasising transparency. It will also empower regulators
with broad investigative and enforcement powers to cover
non-compliance at both national and EU level.

Find out more in the European Parliament’s press release, here and the European Commission’s press
release, here.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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