What is DSA?
Regulation (EU) 2022/2065 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) – abbreviated as the DSA – is a comprehensive legal regulation that introduces uniform rules across the European Union for online intermediary service providers with the aim of creating a safe, predictable and trustworthy online environment. It does this primarily by setting new obligations for service providers, including content liability rules. On the other hand, the DSA gives service users new rights that give them greater control over the services which are provided to them. Another important element is the introduction of a cross-border enforcement mechanism and cooperation between competent authorities across the EU. Furthermore, the DSA regulation has given the scientific community access to data from very large online platforms and online search engines to investigate systemic risks.
The DSA Regulation came into full effect on 17 February 2024. It will be implemented in the Czech legal system through the Digital Economy Act, which is currently in the legislative process.
Main goals of the DSA:
- Strengthening of service users rights,
- Promoting transparency,
- Regulation of large online platforms,
- Measures against illegal content and systemic risks,
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Involvement of civil society.
The DSA applies to all online intermediary service providers that offer their services to users in the EU, including internet access service providers, caching services, online marketplaces, social networks, cloud storage, online platforms, web hosting and online search engines.
One of the aims of the DSA is to promote the competitiveness of smaller European undertakings, so small and micro undertakings are exempt from most of the obligations. On the contrary, most obligations fall on providers of very large online platforms and online search engines. Providers can be fined up to 6% of their worldwide turnover for breach of the obligations.
Illegal content
Illegal content is not defined in the DSA. What is illegal must be determined by EU or national legislation. The DSA follows a simple rule - what is illegal offline should be illegal online. The illegality of content will be assessed and evaluated by hosting service providers themselves if they become aware of it. The parties may refer any disputes about the nature of the content to a court or to a specialised out-of-court dispute resolution body.
Measures against illegal content may also be imposed on the provider by a public authority if it has the power to do so on the basis of a specific law (the CTU does not have such power).
In terms of private liability for illegal content, the DSA only modifies the existing rules set out in the Directive on e-commerce. It therefore remains the case that a provider is not liable for illegal content of which it has no specific knowledge. The DSA now adds that if a user reports illegal content to the hosting service provider, the hosting service provider cannot claim that it did not know about it. If the provider fails to act even after reporting the illegal content, it becomes jointly liable for the content in question and any affected recipient of the service can claim for damages from the provider.
Systemic risks
In addition to illegal content, the DSA distinguishes a category of so-called systemic risks, which are associated exclusively with the operation of very large online platforms and online search engines. These platforms are obliged to continuously analyse the occurrence of systemic risks associated with the provision of their services. Systemic risks include, for example, negative effects on fundamental human rights, civic discourse, electoral processes or public security. The purpose of the rules is to ensure that online platforms do not feed negative social phenomena in the online space, e.g. in order to increase the reach of posts, but rather to dampen them. The adequacy of these measures will be assessed by the European Commission.
CTU can currently exercise only those competences under the DSA that do not affect the rights and obligations of persons, as the relevant adaptation law is still in the legislative process.