News Update IT

From 17 February 2024, the Digital Services Act ("DSA") will apply in its entirety. The DSA (EU Regulation 2022/2065) aims to modernize existing e-commerce legislation and introduces a new legal framework for online intermediary services, such as rules relating to content, advertising and transparency. 

Some of the obligations under the DSA already took effect as from 16 November 2022. In an earlier update in May of this year, we wrote about developments around the DSA. In this news update, we provide an overview of some recent developments in the last months.

• Designation of new VLOPs: The European Commission designated three new Very Large Online Platforms (VLOPs) on 20 December 2023: Pornhub, Stripchat and XVideos. These adult content websites attract so many visitors each month that they reach the threshold of an average of 45 million monthly users. The designation means that these platforms have to comply with stricter rules under the DSA. This is the second time the Commission has designated VLOPs; on 25 April 2023, it already designated 17 platforms as VLOPs and two search engines as so-called "VLOSE" (Very Large Online Search Engine).
  
  

• Transparency reports: From 6 November 2023, the first VLOPs and VLOSEs – designated by the European Commission on 25 April 2023 – are required to publish transparency reports. The transparency reports must contain information on the moderation of content on the services of the platforms and search engines, including the number of notifications from users, the number of contributions removed by the platform on its own initiative, the number of orders from national authorities, the accuracy and error rate of the automated moderation systems and information on the moderation teams. Transparency reports must be published by these VLOPs every six months. The transparency reports of Amazon, LinkedIn and TikTok can already be found online.
  
  

• Transparency database: On 26 September 2023, the European Commission launched a database publishing platforms' reasons for removing content, known as the "Statements of Reasons" database. The DSA requires platforms and search engines to provide users with a motivation when they remove or restrict access to certain content. The database is a collection of these motivations. 
  
  

• Database of general terms and conditions for digital services: The European Commission published a database on 1 December 2023 to create more transparency around terms and conditions for digital services. For example, in the database you can see recent changes to general terms and conditions. This database currently contains around 790 different sets of general terms and conditions.
  
  

• Information requests to companies: In recent months, the European Commission has sent formal information requests to several VLOPs, including X, Tiktok, YouTube, AliExpress, Amazon, Meta, Snap, Apple and Google. These information requests aim to find out whether the platforms comply with the requirements in the DSA.
  
  

• Formal proceedings against X: On 18 December 2023, the European Commission announced that it had launched formal proceedings to assess whether X has infringed the DSA. The focus of the investigation is on X's compliance with its obligations regarding the fight against the distribution of illegal content, the effectiveness of its measures to combat information manipulation, the measures taken by X to improve the transparency of its platform and a presumably misleading user interface design in terms of the use of blue tick marks.
  
  The initiation of formal proceedings empowers the Commission to take further enforcement action. The DSA does not set a deadline for the completion of formal proceedings.
  
  

• Cooperation European Commission and ACM: On 19 December 2023, the Commission announced the conclusion of an administrative arrangement with the Dutch Authority for Consumers & Markets (ACM) to support the Commission's supervisory and enforcement powers under the DSA. The arrangement contributes to the development of expertise and capabilities based on which the Commission can identify and assess systemic risks under DSA. The ACM will additionally support the Commission in the supervision of VLOPs. 
  
  The ACM is expected to be formally appointed as the Dutch primary DSA regulator, which will become part of the Digital Services Council, to be established in February 2024. In addition, the published draft bill implementing the Digital Services Act (Wetsvoorstel tot uitvoering van de Digitaledienstenverordening) shows that the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) will be designated as another competent authority for specific data-processing related topics. 
  
  

The general obligations under the DSA, including the obligations to publish transparency reports and justifications, will also apply to all online platforms and search engine providers that are not VLOPs or VLOSEs from 17 February 2024, with the exception of micro and small enterprises.

For any questions about the DSA, please contact Jurre Reus or Thomas de Weerd.