The mechanism for reporting illegal content under the DSA, notice & action

In previous articles we explained in detail, among other things, who is subject to the DSA, and we took a closer look at the transparency obligation imposed by the DSA, which applies to so-called

VLOPs, and we addressed the issue of dark patterns, that is, deceptive interfaces.

Following our most recent analysis of hosting providers, in this article we would like to take a closer look at the procedure for reporting and removing illegal content, which under the DSA applies specifically to hosting providers, who play a particularly important role in combating illegal content on the Internet.

What is the notice action procedure?

The mechanism for reporting illegal content introduced by the DSA, the so-called notice action procedure, will replace the previously known and applied notice take-down procedure, which in Poland was in force under the Act on the Provision of Electronic Services 1 .

The aim of the procedure is to create easily accessible and user-friendly mechanisms for reporting information that a user considers to be illegal content ( notice ).

The hosting service provider, in turn, has the right to decide whether it agrees with the report and whether, as a result, it will remove the illegal content or disable access to it ( action ).

Importantly, the DSA harmonizes the rules governing mechanisms for reporting illegal content online across the entire European Union, excluding the possibility of national regulation in this area, which was previously provided for in Article 14(3) of the e-commerce directive.

This procedure applies exclusively to illegal content, that is, content that is contrary to national or EU law, and does not cover other harmful content that is not formally unlawful but may, for other reasons, be regarded as unethical or socially undesirable 2 .

For example, incitement to hatred would be illegal content, while vulgar language would be harmful content.

This means that it is also legally possible for socially harmful content not to be moderated by the hosting provider, for instance because of the nature of the specific services provided.

Why hosting service providers?

We have already explained who hosting service providers are in the article “ Get Ready for the Digital Revolution!

Who is subject to the Digital Services Act ? ”.

In accordance with the first sentence of recital 50 of the DSA, only hosting service providers have been tasked with implementing the notice and action procedure for reporting and removing illegal content, because they store information provided by the recipients of a given service and make this information available to other recipients, sometimes on a large scale.

For this reason, they play a particularly important role in combating illegal content on the Internet.

Why hosting service providers?

In accordance with Article 14 of the DSA, hosting service providers should implement a user-friendly mechanism for reporting illegal content. In particular, it must allow reports to be submitted exclusively by electronic means.

This could be, for example, an interactive form.

The EU legislator sets specific requirements regarding the minimum content of a report, which should include at least: the reasons why the content is considered illegal, that is, the circumstances, facts and arguments supporting the view that the content is unlawful and not merely socially harmful; an indication of the exact electronic location of the information, such as a URL; the details of the reporting party, such as first and last name, name, and email address.

Because of the risk of abuse, the information provided should make it possible to identify the reporting party. The report should also include a statement confirming the accuracy and completeness of the information and the allegation. The purpose of this statement is to confirm that the report is made in good faith and that the information and allegations it contains are accurate and complete 3 .

After a report has been submitted: the hosting service provider is required to send the reporting party, “without undue delay,” confirmation that the report has been received, provided that the party has supplied its electronic contact details; the provider should then process the report in a timely, objective, non-arbitrary, and diligent manner; the hosting provider determines whether it agrees with the assessment presented by the reporting party and decides whether it wishes to remove the illegal content or disable access to it; and “without undue delay,” it informs the reporting party and the recipient of the service of the decision taken regarding the reported content and of the remedies available to them.

After receiving the hosting provider's decision, the reporting party has the right to make use of the available remedies.

Reporting parties may use, for example, the internal complaint-handling system provided by the operator of the online platform on which the illegal content covered by the report was removed or otherwise moderated, as well as the out-of-court dispute resolution mechanisms operated by bodies certified in accordance with Article 21(3) of the DSA.

As a last resort, the reporting party may also appeal to a court.

The notice action procedure additionally contains two safeguards intended to streamline the process of handling reports of illegal content, namely: it introduces a category of privileged reporting parties, the so-called trusted flaggers, with respect to whom platforms are required to take a decision on their complaint as a priority and without delay; and it grants platforms the power to temporarily suspend the provision of services to certain recipients in the case of entities that frequently provide illegal content, or to temporarily suspend the processing of certain reports and complaints in the case of entities that frequently submit unfounded complaints 4 .

Summary. The DSA's introduction of the notice action procedure will require hosting providers to implement a reporting mechanism for illegal content tailored to the regulation, including informing users, in the terms of service, of the prohibition on posting content that infringes the law as part of the service, as well as of the rules of the procedure that has been implemented.

The notice action procedure may lead to a faster response to violations on the Internet and to more effective management of content on online platforms.

However, because illegality of content can be assessed arbitrarily, it requires monitoring in order to ensure an appropriate balance between effectively removing undesirable content and protecting freedom of expression.

We remind all entities that will be subject to the obligations set out in the DSA, including the need to implement a mechanism for reporting and removing illegal content, that the DSA has just become fully applicable throughout the European Union.

So if you are wondering whether the regulation applies to you, or if you need help adapting to the new obligations, please get in touch.

We will be happy to answer your questions!

Article 14 of the Act of 18 July 2002 on the Provision of Electronic Services (Journal of Laws

No. 144, item 1204, as amended). Article 2(g) of Regulation (EU) 2022/2065 on a Single Market For Digital Services and amending Directive 2000/31/EC (the Digital Services Act).

Commentary on Article 14 of the DSA, M.

Grochowski (ed.), The Digital Services Act, 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.

Commentary, [in:] M.

Grochowski (ed.) The Digital Market.

The Digital Services Act.

The Digital Markets Act.

The platform-to-business regulation.

Commentary, Warsaw 2024. The notice take action procedure in the draft Digital Services Act, P.

Wasilewski, source: www.traple.pl/procedura-notice-take-action-w-projekcie-aktu-o-uslugach-cyfrowych-digital-services-act/ , accessed: 02.02.2024.

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