Get Ready for the Digital Revolution! Who is subject to the Digital Services Act?

Who is subject to the Digital Services Act? December 18, 2023 The Digital Services Act ("DSA") marks a regulatory milestone for the operations of online service providers.

It introduces a range of obligations for businesses operating in the online space.

Online service providers must now take concrete steps to comply with the new rules in order to avoid the severe penalties that the DSA provides for those who fail to meet its requirements.

You can read more about the DSA itself in our previous articles: DSA/DMA, what is it all about?

Part

I and DSA/DMA, what is it all about?

Part

II.

Do these changes apply to you as well?

Read the article and find out whether you are subject to the new EU regulation!

Who falls within the scope of the Digital Services Act?

The obligations set out in the Digital Services Act are addressed to providers of digital services.

These are entities that provide intermediary services and give users access to content, products, and services on the EU single market, regardless of whether they are established within the Union or outside it.

In other words, the new obligations have been imposed on intermediaries that provide access to content placed online by users.

WHO QUALIFIES AS A DIGITAL SERVICE PROVIDER?

The obligations established in the Digital Services Act will cover, among others, the administrators of social media platforms such as Facebook or X (formerly Twitter), insofar as these platforms are used for the public dissemination of content shared by users.

The changes will also affect services such as Instagram, LinkedIn, Snapchat, and YouTube, with respect to the public dissemination of videos shared by users.

However, the scope of the DSA does not cover so-called content providers, meaning those internet service providers who make their own or third-party content available online and play an active role in creating it 1.

CONTENT PROVIDERS, EXAMPLES The DSA does not apply to providers of streaming platforms (VoD) that publish films of their own production or under licenses they have obtained.

This group includes: Netflix, HBO Max, and Disney+.

The DSA also provides for partial exemptions (a limitation of DSA obligations) for micro and small enterprises that act as providers of online platforms.

What are intermediary services?

The Digital Services Act distinguishes 3 categories of intermediary services: Mere conduit This consists of transmitting information provided by a recipient of the service over a telecommunications network, or providing access to a telecommunications network.

Examples include internet exchange points, wireless access points, and virtual private networks.

Caching This consists of the automatic, intermediate, and temporary storage of information provided by the recipient, carried out solely to make the subsequent transmission of that information to other recipients of the service more efficient or more secure upon their request.

These cover solely the provision of content delivery networks, reverse proxies, or content adaptation proxies.

Such services are crucial for ensuring the smooth and efficient transmission of information delivered on the internet.

Hosting This consists of storing information provided by the recipient of the service.

Examples include cloud computing, web hosting, paid referencing services, and services that enable the online sharing of information and content, including file storage and sharing.

Classifying a given service as "mere conduit", "caching", or "hosting" is assessed individually in each case and depends solely on its technical functions, which may evolve over time 2.

What happens when some services fall within the scope of the DSA and others do not?

Not everything is black or white.

It should be emphasized that each case requires an individual and detailed analysis, as well as an examination of which obligations apply to the given service.

In practice, situations very often arise where: a service or part of a service provided by an online business may be subject to the DSA while others in its offering are not, or several different services are subject to the DSA.

What then?

The answer can be found in recital 15 of the Digital Services Act, according to which: Where only some of the services provided by a provider are covered by the scope of this Regulation, or where the services provided by a provider are covered by different sections of this Regulation, the relevant provisions of this Regulation should apply only in respect of those services that fall within their scope 3.

Let us explain this with an example: The website "ABC.pl" allows users to post job offers for contractors (for example, for construction work or legal services).

The website administrator also runs a section with advice for portal users interested in a particular type of job (for example, on the cost of installing a shower enclosure, or the differences between the professions of legal adviser and advocate).

This raises the question of whether, and to which services, the DSA will apply.

The services provided must be divided into two categories: 1.

As for the offers posted by portal users, if they are not verified by the platform administrator, then for that service the administrator will have the status of an online platform provider within the meaning of the DSA and will be required to meet the requirements established in the DSA. 2.

As for the advice provided to portal users, the provisions of the Regulation will not apply, because this content originates from the business itself, is edited by it, and is placed in the appropriate section.

Classifying online services step by step Determining whether a digital service provided by a business is covered by the DSA requires carrying out a test that consists of answering the following questions: DO YOU PROVIDE A SERVICE THAT IS: 1.

AN INFORMATION SOCIETY SERVICE WITHIN THE MEANING OF THE DSA?

An information society service is: a) any service normally provided for remuneration, b) at a distance, c) by electronic means, d) at the individual request of a recipient of the service. ↓ 2.

AN INTERMEDIARY SERVICE WITHIN THE MEANING OF THE DSA?

There are three types of intermediary services: a) "mere conduit", b) caching, c) hosting.

A detailed description of these services can be found above in the paragraph What are intermediary services? . ↓ 3.

AN ONLINE PLATFORM?

An online platform service consists of: a) a hosting service, b) which, at the request of a recipient of the service, stores and publicly disseminates information. ↓ 4.

A VERY LARGE ONLINE PLATFORM?

A very large online platform is one whose: a) average number of monthly active recipients of the service in the EU is at least 45 million, and b) which has been designated by the European Commission as a VLOP (the list of VLOPs can be found here).

An affirmative answer to any of the questions above may trigger an obligation to implement the Digital Services Act!

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

We will be happy to answer your questions!

This follows, among other things, from recital 18 of the DSA, according to which: "The exemptions from liability established in this Regulation should not apply where, instead of confining itself to providing the services neutrally through a merely technical and automatic processing of the information provided by the recipient of the service, the provider of intermediary services plays an active role of such a kind as to give it knowledge of, or control over, that information.

Those exemptions should accordingly not be available in respect of liability relating to information provided not by the recipient of the service but by the provider of the intermediary service itself, including where the provider concerned has editorial responsibility for the development of that information", accessed: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065 , December 4, 2023.

Cf. recital 28 of the DSA.

Cf. recital 15 of the DSA.

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