The Digital Services Act comes into force for large online providers
Starting today, Friday, the largest platforms and search engines will fall under the new EU regulatory regime of the Digital Services Act. Services such as Google Maps, Play Store, Apple’s App Store, Zalando, Wikipedia, X-Twitter, Telegram, Facebook and YouTube must comply with the new rules. The EU Commission is responsible for enforcement for the largest providers. This also ends the age of the Network Enforcement Act for the largest providers.
When it was passed a year ago, EU commissioners described the Digital Services Act as the basic law for the digital age – the extensive set of rules is now being applied. As of today, 19 particularly large providers must comply with the regulations of the DSA.
The Digital Services Act contains a large number of regulations for providers of online services. The core of the legislation is a graduated catalog of obligations, which basically works according to the principle: the larger the offer, the greater the requirements for operators. The offers, which have more than 45 million users in the EU, are considered “particularly large”. As a result, it is not national supervisory authorities that are responsible for them, but the EU Commission – and the rules are therefore already changing for them.
User content on large platforms will be subject to the DSA regime in the future
One of the most noticeable changes for users concerns the way providers deal with user content on their platforms. The DSA envisages uniform Europe-wide obligations on how the operators have to deal with potentially illegal content. The basic principle remains that providers only have to take action when they become aware – i.e. when they are made aware of it. The DSA itself does not provide for specific processing or deletion deadlines, but the DSA requires a decision that must be made “promptly, carefully, free of arbitrariness and objectively”.
Users must then be informed of the decision if their content or accounts are affected, including a justification as to whether any action is being taken based on their own assessment of the legal situation or based on the Terms and Conditions. Users must also be able to take action against this decision – the EU wants to counteract possible arbitrary decisions and so-called overblocking. This complaint management system is also regulated in detail in the DSA. However, company decisions can still be challenged in court.
After NetzDG comes DSA
With this new regulation, the applicability of the Network Enforcement Act, which previously applied to the largest providers of social networks in Germany, ends in most areas. “Since the Digital Services Act is directly applicable as a regulation to the providers of very large online platforms named by the European Commission from August 25, 2023, the Network Enforcement Act will be superseded for these providers within the scope of the DSA,” explains a spokeswoman for the Federal Ministry of Justice on request from heise online.
“This applies not only to the content-related obligations of the providers, in particular the processing of complaints about illegal content and the creation of transparency reports, but also to official supervision and the imposition of fines.” The Federal Office of Justice in Bonn was responsible for enforcing the long-controversial Network Enforcement Act. According to the BMJ spokeswoman, however, it may continue to use old procedures under the NetzDG.
However, the DSA goes far beyond what was regulated in the NetzDG: On the one hand, only a positive list of paragraphs of the German Criminal Code was stored there – copyright disputes, for example, were expressly not included. With the DSA, on the other hand, the providers will have to take action in all cases in which a legal violation could have occurred. On the other hand, the DSA does not only limit the obligations to social networks – in principle it also affects user reviews on offers such as Google Maps or Amazon.
Online trade also affected
Anyone who likes to use online marketplaces will probably notice further changes: The DSA comes with an immediate ban on behavior control through so-called dark patterns. The permissible personalization options are also restricted by law and more transparency is prescribed for recommendation systems. In addition, marketplace operators must submit to certain obligations to ensure that providers actually exist on their platforms. The specifications are intended to improve consumer protection.
However, many of the requirements only affect the largest providers first. Most of the obligations later also affect the providers among 45 million EU users. They just do not fall under the direct control of the EU Commission, but are to be supervised by the national supervisory authorities. However, at least in Germany, there is still a lack of the corresponding implementation law, which has not yet found its way into the federal cabinet.
Algorithm timelines can be switched off
The major providers will also have to adhere to further rules beyond user content. The big providers like Meta and Google are already emphasizing how willingly and extensively they want to follow the new guidelines. For example, Meta sells the DSA’s obligation to also offer non-algorithmic content display as a feature: “We now offer our European users the option to display reels, stories, search and other parts of Facebook and Instagram without ranking by Meta,” says know about meta in a blog post.
This is one of the features that large providers criticized in advance as being difficult to implement and as a requirement that destroyed the usability of the offers. The two search engines affected, Google Search and Microsoft’s Bing, must also offer an option without a recommendation system.
For the large providers, however, there are additional obligations. For example, they have to keep an archive of the advertisements placed on their offers, fulfill further transparency obligations and also guarantee access for researchers. On the other hand, it is still unclear what the consequences of another article in the DSA, which is also only relevant for the largest offers, will have: The providers must regularly carry out risk assessments, to what extent they or individual functions, for example, increase the distribution of illegal content, adverse effects on public security or election processes, the protection of human dignity, health protection or gender-specific violence. If such “systemic risks” are identified, the providers should then take active action against them, for example by adapting algorithms or moderating content.
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