Third article in the mini-series on the Digital Services Act: who should be on the lookout within the DSA?
In previous posts, we have introduced what the Digital Services Act (DSA)[1] is and the purpose of this new and groundbreaking European legislation.
In this post, we would like to give you an overview of who is affected by the DSA and to whom it imposes obligations.
Who does the DSA impact?
The regulation generally affects us all, as it is now virtually impossible to avoid using internet search engines, online marketplaces, social networks or other online platforms that are now global. For ordinary users, however, the DSA gives rights rather than obligations.
The obligations under the DSA apply to most providers of information society services, i.e. persons providing their services (i) usually for remuneration, (ii) remotely, (iii) electronically and (iv) at the individual request of the recipient of the services.[2]
Put simply, the DSA imposes obligations on almost all online service providers, from social networks, content streaming platforms and online marketplaces to search engines, accommodation portals and cloud storage.
Who is subject to the obligations under the DSA?
As we have already mentioned in previous posts, the DSA distinguishes 4 categories of online entities according to the degree of their impact on the online ecosystem, i.e. especially on its users.
These categories are:
- Mediation services
- Hosting services
- Online platforms/marketplace
- Very large online platforms and online search engines
Mediation services
A mediation service is to be understood as one of the information society services, namely service of (i) simple transmission, (ii) caching and (iii) hosting.[3] In general, therefore, these will be services whereby information is stored at the request of the user.
Intermediary services can therefore be understood as services offering network infrastructure, i.e. Internet access providers or domain registrars (including hosting services).[4]
Hosting services
Hosting services are services consisting of the storage of information provided by the recipient of the service at his request.[5] Typically, these will be cloud or web hosting services, including online platforms, which are a subset of hosting services.[6]
Online platforms/marketplace
An online platform is a service that stores and publicly disseminates information at the request of the recipient of the service. Leaving aside other definitional specifics[7] of an online platform, one can generally think of social networks, online stores, sharing economy platforms, etc.
Very large online platforms and online search engines
The last and most strictly regulated category is Very Large Online Platforms and Online Search Engines, abbreviated VLOP and VLOSE (Very Large Online Platforms, Very Large Online Search Engines). These are a specific type of online platforms fulfilling the criteria in terms of number of monthly users. A VLOP or VLOSE will be a service that is used by at least 10% of EU consumers, i.e. more than 45 million people, on a monthly basis.
Are you therefore subject to the obligations under the DSA?
If you operate, for example, an internet application, an online platform, a file storage or file sharing service, and if you provide these services generally for remuneration, remotely, electronically and at the individual request of the recipient, and the service you provide consists of simple information transfer, caching or hosting, then you are likely to be covered by the DSA. As can be seen from the above, a crucial aspect for assessing whether you are covered by the DSA is also whether the user of your service has the possibility to upload their own content, e.g. in the form of comments, advertisements, etc.
From the perspective of the DSA, then, it is not whether the service intermediary is established in the EU that determines the imposition of obligations, but whether the recipients of those services are established or resident in the EU. Therefore, an intermediary established outside the EU will also be subject to the obligations under the DSA if the recipients of its services are established or resident in the EU.[8]
The DSA therefore affects not only the providers of intermediary services, but ultimately everyone who uses these services.
We will discuss the individual obligations for the sub-categories listed above in the following article, which will focus on the obligations set out in the DSA.
If you are unsure whether this new European regulation applies to you, or if you are unsure but not sure how to implement the new DSA obligations into your internal mechanisms, please do not hesitate to contact us.
[1] Regulation 2022/2065 on the Digital Services Act ("DSA")
[2] Department of Digital Economy and Smart Specialisation, ed. MINISTRY OF INDUSTRY AND TRADE. The concept of "information society service" [online]. [cited 2024-02-15]. Available from: https://www.mpo.cz/cz/podnikani/digitalni-ekonomika/pojem-sluzba-informacni-spolecnosti--84484/.
[3] Article 3(g) of the DSA
[4] EUROPEAN COMMISSION. Digital Services Act. A safe online environment that is accountable to users. [online]. [cited 2024-02-20]. Available from: https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_cs
[5] Article 3(g) of the DSA
[6] EUROPEAN COMMISSION. Digital Services Act. A safe online environment that is accountable to users. [online]. [cited 2024-02-20]. Available from: https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_cs
[7] Article 3(i) of the DSA
[8] Article 2(1) of the DSA