The Digital Services Act

In one line

The Digital Services Act keeps the old immunities and adds a ladder of duties that gets steeper the larger the platform is.

In the wording a student can write in an exam: Regulation (EU) 2022/2065 on a Single Market for Digital Services carries forward the liability exemptions of the e-Commerce Directive in its articles 4 to 6 with the prohibition on general monitoring in article 8, and adds a graduated set of due diligence obligations, the lightest applying to all intermediary services, further obligations to hosting services including the notice and action mechanism in article 16 and the statement of reasons in article 17, further obligations to online platforms including internal complaint handling in article 20 and trusted flaggers in article 22, and the heaviest to very large online platforms and very large online search engines designated under article 33, which must assess systemic risks under article 34 and mitigate them under article 35.

Why the Directive was not enough

Because the Directive answered one question and by 2020 there were four.

The Directive answered: when is a provider liable for content it did not create? Chapter 660 works the answer.

It did not answer: what must a provider do when told about illegal content; what must it tell a user whose content it removes; what recourse does that user have; and what obligations should attach to a platform whose scale makes its design choices a matter of public concern.

The Digital Services Act answers all four, and it does so by a ladder.

Articles 1 to 3: what the Regulation is, whom it binds, and its vocabulary

Article 1, subject matter. The aim is to contribute to the proper functioning of the internal market for intermediary services by setting harmonised rules for a safe, predictable and trusted online environment that facilitates innovation and in which the fundamental rights of the Charter, including consumer protection, are effectively protected. It establishes a framework for the conditional exemption from liability of providers of intermediary services, rules on due diligence obligations tailored to categories of provider, and rules on implementation and enforcement.

Notice the order of those three limbs, because it is the architecture of the whole Regulation and the answer to the question of what the Act is: an immunity, a graded set of duties, and a regulator.

Article 2, scope, and this is the extraterritoriality provision. The Regulation applies to intermediary services offered to recipients who have their place of establishment or are located in the Union, irrespective of where the provider is established. It does not apply to a service that is not an intermediary service, does not affect the E-Commerce Directive, and is without prejudice to other Union acts including the Audiovisual Media Services Directive, Union copyright law and the Terrorist Content Regulation.