DSA/DMA, what is it all about? Part II

the Digital Services Act.

As announced, in this article we explore the subject of the DSA regulation, which governs the functioning of the Internet in parallel, namely

the Digital Services Act.

This act is aimed in particular at smaller platforms and network users.

In light of the above, what can the average service providers expect, and what new rights have been granted to users?

DSA: who does it apply to?

The DSA regulation is aimed at smaller platforms than the DMA.

The preamble to the DSA indicates that the regulation applies to providers of intermediary services, consisting in the provision of services known as 1) “mere conduit”, 2) “caching”, and 3) “hosting” services.

In practice, these will include, for example: Internet access providers (ISPs), such as Orange or Comcast, which offer access to the global network but do not control or monitor the content transmitted by users; email providers, such as Gmail or Yahoo Mail, which transmit emails but do not analyze their content (unless the user has consented to having messages analyzed for advertising purposes); hosting service providers, such as Bluehost or GoDaddy, which provide servers and server space for websites but are not responsible for the content placed on those sites by the site owners; social media platforms, such as Facebook or Twitter, which allow users to share content but do not analyze or modify that content, provided it complies with their terms of service; file transfer service providers, such as Dropbox or Google Drive, which store and synchronize files in the cloud without bearing responsibility for their content; online travel and accommodation platforms, such as Booking.com or Airbnb; app stores, such as

Google Play and the App Store; and finally video platforms, such as

YouTube or Twitch.

The Digital Services Act, however, also singles out among them the very large online platforms, namely

VLOPs (very large online platforms) and VLOSEs (very large online search engines), on which it imposes additional obligations dedicated to them directly in the regulation. On 25 April 2023,

the European Commission designated as VLOPs, among others,

Amazon Store, AliExpress, Google Play, Instagram, LinkedIn, Pinterest, Wikipedia, Zalando, and YouTube.

Bing and Google Search were designated as VLOSEs.

The platforms listed had four months to comply with the guidelines set out in the DSA.

DSA: what will change?

The DSA imposes a range of new obligations on the intermediary service providers indicated above, which at the same time directly translate into a range of new rights and greater protection for their users.

These are primarily: an increase in users' rights, in particular as regards 1) being informed about the content recommendation tools used, 2) the ability to opt out of receiving recommendations based on profiling, 3) the implementation of a procedure for removing illegal content, 4) the obligation to label all advertisements with information about who finances them, and 5) making available a summary of the terms of use of the platform, formulated in an accessible manner and in the languages of the Member States in which the platform operates; enhanced protection of minor users, as platforms will have to formulate the rules for using the service in a manner understandable to minors and will not be allowed to display advertisements to minors based on their profiling; the Digital Services Act also exempts intermediary service providers from liability for content posted on the platforms they operate, but on the condition that the online intermediary does not play an active role in the process of posting it, i.e. it has no knowledge of or control over this information. In addition to the general obligations addressed to all intermediary service providers, the DSA regulation directs specific requirements at hosting providers, which are described in Section 2 of the regulation.

This is primarily the introduction of a procedure for removing illegal content (notice and action).

Hosting providers are required to develop a procedure for reporting infringements relating to content published on their services, based on giving reasons for the decision to remove content and enabling the author of the content to appeal against such a decision.1

What real effects may the EU reform have?

Among the preliminary assessments of Internet analysts, it is noted that the DSA may primarily affect the online advertising market, worth more than PLN 10 billion.

According to research conducted by the Polish Economic Institute, implementing the rules of the DSA regulation may lead to lower advertising prices and increased competitiveness in the online advertising market.

In addition, the new obligations imposed on app stores (including, among others, a ban on giving preference to the installation of their own apps) are an opportunity for developers to earn more and for lower prices for users.2

Given the introduction of the obligation to clearly inform users about the rules for using services, as well as the introduction of a content moderation procedure, the DSA will certainly also help to curb the practice of unilateral censorship.

If you have more questions about the provisions of the DSA regulation, or you are wondering how to introduce the required changes within your website or application, get in touch with us.

We will be happy to answer your questions!

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ

U.

EU.

L of 2022,

No. 277, p. 1, as amended).

Report “European Digital Regulations: the Impact of the DSA and DMA on Businesses in Poland”, Polish Economic Institute, p. 5.

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