Digital Services Act (DSA) and Digital Markets Act (DMA)

The Act to Improve Law Enforcement in Social Networks (NetzDG) already obliges certain telemedia service providers to delete illegal content within short deadlines. The prerequisite for falling under this regulation is that the telemedia service providers operate platforms on the internet with the intention of making a profit, which are intended for users to share any content with others and thus make it accessible to the public.

The Act to Improve Law Enforcement in Social Networks (NetzDG) does not apply to providers of intermediary services. However, in order to make them accountable, the EU Commission published two EU regulations consisting of a package of two laws, the Digital Services Acts (DSA) and the Digital Markets Acts (DMA).

In order to be able to comply with the imposed obligations in time, providers of intermediary services must now act quickly. This is because providers face fines of up to 6 percent of the global average turnover of the previous year in the event of non-compliance.

The legislation on digitalisation continues to progress and now specifically takes the providers of switching services to task with the DSA. From 17 February 2024, this will be valid for all affected companies. Above all, providers of such platforms and search engines that have been classified as very large by the EU Commission will be obliged to implement the corresponding measures from the day their classification is announced (since 17.02.2023).

The Digital Services Act at EU level provides a central standard as a counterpart to the partly diverse, national regulations. The new regulations (DSA and DMA) set extensive compliance requirements for the companies concerned. The focus on an appropriate and uniform framework is intended to regulate the emerging ecosystem of both the ever-growing number of intermediary services and their growing influence.

Creating a safe and transparent online environment for users and consumers is at the heart of the Digital Services Act. This includes, among other things:

• Enable people to make their own and informed decisions (ban on dark patterns, ban on manipulating decisions),
•  Protect minors (ban profiling),
• Better moderation, containment and tracking of illegal content.
• Creating clear, direct communication channels
• Educating people about the algorithms and recommendation systems used.

In principle, the DSA applies to all providers of switching services that have their registered office in the EU or offer their services in the EU (market location principle). Size is irrelevant, as both micro-enterprises and very large companies are affected. However, the scope of the regulations and due diligence obligations to be followed differs, which vary depending on the type and size of the service and build on each other.

Important, large and influential companies are to be held appropriately responsible, without at the same time putting obstacles in the way of up-and-coming start-ups and smaller companies from the outset. The aim is to use this mechanism to avoid damage to the overall market due to expensive and burdensome regulations, and at the same time to secure the potential for innovation.

Intermediary services include providers of the following services:

• Mere conduit
• Caching
• Hosting

Online platforms and online search engines are classified under hosting providers. The complex ecosystem of switching services also includes, according to the DSA:

• providers of wireless local area networks,
• domain name system (DNS) services,
• top-level domain name registries,
• registrars and certificate authorities that issue digital certificates,
• virtual private networks,
• online search engines,
• cloud infrastructure services,
• content delivery networks,
• voice over IP
• messaging services and web-based email services

Some providers of online platforms/search engines are obliged, in addition to publication, to initially report the number of their average, active, individual EU users per month to the EU Commission by 17.02.2023 and thereafter every 6 months. Based on these figures, it will be decided, among other things, whether you will be assigned to the very large online platforms or very large online search engines (+45 million users).

17 February 2023 is the deadline for affected online platforms or search engines to publish their EU user numbers.

On 01 February 2023, the EU Commission also published a user reporting guide to directly address the most pressing issues in this context.

The DSA provides for the tool of "independent review" for very large online platforms and very large online search engines - in this case you have been appointed one by the EU Commission. Here we are at your disposal with our know-how and experience.

Likewise, we offer you the possibility of an initial, free and non-binding affectedness analysis, which you can carry out yourself and in which you will receive the result of your self-assessment of affectedness immediately afterwards.

You also have the option of contacting us directly in order to carry out our Assessment light in the next step. We will be happy to assist you with the introduction of appropriate measures and their subsequent implementation.

Feel free to contact us and ask us your questions and concerns.