The day after tomorrow, i.e. from 17 February 2024, Regulation (EU) No 2022/2065 of the European Parliament and of the Council on the single market for digital services and amending Directive 2000/31/EC, the so-called "Digital Services Act", will enter into force.
The Digital Services Act introduces a number of changes, including:
- introduces moderation rules (including, for example, removal of illegal or harmful content);
- introduces a ban on the use of so-called dark patterns , i.e. deceptive web interfaces;
- introduces sanctions and penalties for non-compliance with AUC regulations;
Ad 1. The Digital Services Act defines the rules for moderation (including, for example, the removal of illegal or harmful content), but it does not prejudge or explicitly define which content is illegal – this matter is left to the internal discretion of individual EU member states. However, importantly, if certain content is deemed illegal, intermediary service providers will be required to remove it – otherwise, they will be held liable for its dissemination. As for so-called harmful content, the Digital Services Act does not mandate the removal of such content, but leaves it to the discretion of service providers to determine what they consider to be such content and what they do not, and to remove it.
Ad 2. Regarding the prohibition of using "deceptive interfaces" (so-called dark patterns ), according to the AUC, providers cannot design (or operate) web interfaces (websites) not only in a way that misleads users (recipients), but also in a way that manipulates recipients or, for example, limits their ability to make informed decisions.
Ad 3. As for sanctions (penalties) for non-compliance with the AUC provisions, this act introduces a number of different sanctions and penalties, including, among others, high financial penalties – e.g. up to 6% of the annual global turnover of a given indirect service provider in the preceding year.
Importantly, however, the AUC does not repeal the current Act on the provision of services by electronic means, the provisions of which will remain in force.
Which entities will be covered by the AUC?
Primarily, it applies to intermediary service providers, i.e., entities that provide various types of services providing access to content posted online by other users. Interestingly, it does not apply to so-called providers (as entities that decide whether to make certain content available online).
What services does the AUC regulate?
Primarily, these are the following categories of indirect services:
- ordinary transmission, i.e. e.g. telecommunications services, data transmission, etc.
- caching , i.e. storing data on proxy (e.g. for easier access to content previously viewed by the user; and
- Hosting , e.g., clouds; that is, content stored on the entities' own resources. A special type of hosting is online platforms (e.g., social networking sites, dating sites, trading platforms, sales platforms, etc.).
The obligations to be met by these entities are to be—in accordance with the so-called "principle of proportionality"—adapted to the category and size of the service in question. The general assumption is that the least stringent obligations are imposed on providers of all categories of indirect services, with greater obligations for hosting providers, and even greater obligations for internet platform providers (which constitute a specific category of hosting), and the most stringent obligations for providers of very large internet platforms and search engines.
This stems from the assumption that such large platforms can be expected to provide "more" than other providers, as these platforms exercise a certain organizational control over the content posted by users.
The changes introduced will impact, among other things, the content of regulations governing the provision of electronic services, which will need to be adapted to the new regulations. The Digital Services Act introduces additional categories of information that should be included, such as information regarding restrictions imposed by service providers on the use of these services, including content submitted by users, as well as any policies or procedures used to moderate content (e.g., remove it), etc. Furthermore, the Digital Services Act also introduces new obligations, for example, for trading platforms where transactions (contracts) are concluded between businesses and consumers. Providers of such services will be required to verify entities providing their services on such platforms (so-called KYC – know your customer ). Furthermore, they will also be required, for example, to design their web interfaces so that businesses can fulfill their information obligations towards consumers, etc.
This alert is for informational purposes only and does not constitute legal advice.
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