PURPOSE: to contribute to the proper functioning of the internal market and to ensure a safe, predictable and reliable online environment in which the fundamental rights enshrined in the Charter are duly protected.

LEGISLATIVE ACT: Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act).

CONTENT: the Regulation lays down harmonised rules for the provision of intermediary services in the internal market . It clearly defines the responsibilities and obligations of intermediary service providers, in particular online platforms, such as social media and marketplaces.

The digital services act is based on the principle that what is illegal offline should also be illegal online . It aims to protect the digital space against the spread of illegal content, and to ensure the protection of users’ fundamental rights.

Scope of application

The Regulation applies to intermediary services offered to recipients of the service that have their place of establishment or are located in the Union, irrespective of where the providers of those services are established. Very large online platforms and online search engines (with more than 45 million active users per month in the EU) are subject to stricter requirements . Micro- and small enterprises are exempted from certain obligations related to the legislation.

Governance

The Commission will have exclusive powers to supervise very large online platforms and search engines for compliance with their obligations. They will be monitored at European level in cooperation with the Member States.

Measures and protection against misuse

Hosting service providers will put in place mechanisms to enable any individual or entity to report illegal content online . These mechanisms must be easy to access and use and allow for the submission of notifications exclusively by electronic means. The regulation requires platforms to cooperate with specialised ‘ trusted flaggers ’ to identify and remove illegal content.

Due diligence obligations

Providers of the intermediary services should clearly indicate and maintain up-to-date in their terms and conditions the information as to the grounds on the basis of which they may restrict the provision of their services. In particular, they should include information on any policies, procedures, measures and tools used for the purpose of content moderation , including algorithmic decision-making and human review, as well as the rules of procedure of their internal complaint-handling system

Traceability of traders

In order to discourage traders from selling products or services in breach of the applicable rules, online platforms allowing consumers to conclude distance contracts with traders must ensure that traders can be traced. Once they have authorised the trader to offer a product or service, the online platform providers concerned will endeavour to randomly check whether the products or services offered have been identified as illegal in online databases.

Right to information

In particular, marketplaces will collect and display information about the products and services offered to ensure that consumers are properly informed . Where an online platform provider becomes aware that a trader is offering an illegal product or service to consumers in the EU through the use of its services, the provider should inform consumers, insofar as it has their contact details, of (i) the fact that the product or service purchased is illegal, (ii) the identity of the trader; and (iii) any relevant means of redress.

Advertising on online platforms

Providers of online platforms that present advertising on their online interfaces will ensure that service recipients can identify, for each specific advertisement presented to each individual recipient, in a clear, concise, unambiguous manner and in real-time manner: (i) that the information presented is an advertisement, including through prominent markings; (ii) identify the natural or legal person on whose behalf the advertisement is presented and identify the natural or legal person who paid for the advertisement.

Providers of online platforms will not present advertising to recipients of services based on profiling using special categories of sensitive data.

Dark patterns

For online platforms and interfaces covered by the digital services act, the co-legislators have agreed to prohibit misleading interfaces known as ‘dark patterns’ and practices aimed at misleading users.

Recommender system transparency

The legislation lays down transparency requirements for the parameters of recommender systems have been introduced to improve information for users and any choices they make. Very large online platforms and search engines will have to offer users a system for recommending content that is not based on their profiling .

Crisis mechanism

In the context of the Russian aggression in Ukraine and the particular impact on the manipulation of online information, a new article has been added to the text introducing a crisis response mechanism. This mechanism will be activated by the Commission on the recommendation of the board of national Digital Services Coordinators. It will make it possible to analyse the impact of the activities of very large online platforms and search engines on the crisis in question and decide on proportionate and effective measures to be put in place for the respect of fundamental rights.

Protection of minors online

Providers of online platforms accessible to minors will put in place appropriate and proportionate measures to ensure a high level of protection of the privacy, safety and security of minors with regard to their service. They will not present advertisements that rely on profiling using personal data about the recipient of the service when they know with reasonable certainty that the recipient of the service is a minor.

Systemic risks presented by very large platforms

Very large digital platforms and services are required to analyse the systemic risks they pose and to carry out a risk mitigation assessment .

This assessment will be carried out on an annual basis and will allow for continuous monitoring to reduce risks related to (i) the dissemination of illegal content, (ii) adverse effects on fundamental rights, (iii) misinformation or manipulation of elections, (iv) cyber-violence against women or harm to minors online. These measures must be balanced against restrictions on freedom of expression and will be subject to independent audits .

New rights

Users will have new rights, including the right to complain to the platform, to request out-of-court dispute settlements , to complain to their national authority in their own language or to seek redress for violations of the rules.

ENTRY INTO FORCE: 16.11.2022.

APPLICATION: from 17.2.2024.

Regulation 2022/2065
OJ L 277 27.10.2022, p. 0001

00030/2022/LEX

SP(2022)483

Results of vote in Parliament

The European Parliament adopted by 539 votes to 54 with 30 abstentions a legislative resolution on the proposal for a regulation of the European Parliament and of the Council on a single market for digital services (Digital Services Legislation) and amending Directive 2000/31/EC.

The European Parliament's position adopted at first reading under the ordinary legislative procedure amends the Commission's proposal as follows:

Purpose and scope

The objective of the Regulation is to contribute to the smooth functioning of the internal market for intermediary services by establishing harmonised rules for a safe, predictable and trustworthy online environment that facilitates innovation, in which the fundamental rights enshrined in the Charter, in particular the principle of consumer protection, are effectively protected.

The draft legislation on digital services clearly defines the responsibilities and obligations of intermediary service providers , in particular online platforms, such as social media and marketplaces. It will apply to intermediary services provided to service recipients whose place of establishment or residence is in the EU, irrespective of the place of establishment of the service providers.

The obligations introduced are proportionate to the nature of the services concerned and tailored to the number of users , which means that very large online platforms and very large online search engines (with more than 45 million active users per month in the EU) will be subject to more stringent requirements. Micro and small businesses will be exempted from certain obligations under the legislation.

Measures and protection against misuse

The legislation on digital services combines the concept of 'illegal content' with the general idea that 'what is illegal offline should also be illegal online'. The measures include clearly defined procedures for removing illegal products, services and content online.

The provider must, as soon as it has actual knowledge or is informed of illegal activity or content, act swiftly to remove or disable access to such content while respecting the fundamental rights of the recipients of the service, including the right to freedom of expression and information.

All hosting service providers will put in place easily accessible and user-friendly notification and action mechanisms which allow easy notification to the hosting service provider concerned of specific items of information which the notifying party considers to be illegal content.

Following this notification, the provider can decide whether or not it agrees with this assessment and whether or not it wishes to remove or disable access to the content.

The hosting service provider will inform the person or entity that notified the specific content without undue delay after having taken a decision on the follow-up to the notification.

Traceability of traders

Online platforms allowing consumers to conclude distance contracts with traders will ensure that traders can only use their services to promote messages on or to offer products or services to consumers located in the Union if, prior to the use of their services for those purposes, have obtained the following information, where applicable: (i) the name, address, telephone number and electronic mail address of the trader; (ii) a copy of the trader’s identification document; (iii) the payment account details of the trader; (iv) the trade register in which the trader is registered and its registration number or equivalent means of identification in that register; (v) a self-certification by the trader.

Prior to allowing the trader concerned to use its services, the provider of the online platform will, make best efforts to assess whether the information is reliable and complete. Where the professionals concerned do not provide this information within 12 months, the providers will suspend the services provided to these professionals until the information in question is obtained.

Right to information

Where a provider of an online platform, allowing consumers to conclude distance contracts with traders becomes aware irrespective of the means used, of an illegal product or service offered by a trader to consumers located in the Union through the use of its services, it will, insofar as it has their contact details, inform the consumers that purchased the product or service using its service during the last six months from the moment that the provider became aware, about the illegality, the identity of the trader and any relevant means of redress.

Advertising on online platforms

Providers of online platforms that present advertising on their online interfaces will ensure that service recipients can identify, for each specific advertisement presented to each individual recipient, in a clear, concise, unambiguous manner and in real-time manner :

- that the information presented is an advertisement, including through prominent markings;

- identify the natural or legal person on whose behalf the advertisement is presented and identify the natural or legal person who paid for the advertisement;

- obtain relevant information concerning the main parameters used to determine the recipient to whom the advertisement is presented and, where appropriate, how these parameters can be changed. The information should be directly and easily accessible from the advertisement.

Providers of online platforms will not present advertising to recipients of services based on profiling using special categories of sensitive data.

Dark patterns

For online platforms and interfaces covered by the digital services act, the co-legislators have agreed to prohibit misleading interfaces known as ‘dark patterns’ and practices aimed at misleading users.

Recommender system transparency

Providers of online platforms that use recommender systems will set out in their terms and conditions, in plain and intelligible language, the main parameters used in their recommender systems, as well as any options for the recipients of the service to modify or influence those main parameters .

Transparency requirements for the parameters of recommender systems have been introduced in order to improve information for users and any choices they make. Very large online platforms and search engines will have to offer users a system for recommending content that is not based on their profiling .

Crisis mechanism

In the context of the Russian aggression in Ukraine and the particular impact on the manipulation of online information, a new article has been added to the text introducing a crisis response mechanism.

This mechanism will be activated by the Commission on the recommendation of the board of national Digital Services Coordinators. It will make it possible to analyse the impact of the activities of very large online platforms and search engines on the crisis in question and decide on proportionate and effective measures to be put in place for the respect of fundamental rights.

Protection of minors online

Providers of online platforms accessible to minors will have to put in place measures to ensure a high level of protection of the privacy, safety and security of minors with regard to their service. They should not present advertisements that rely on profiling using personal data about the recipient of the service when they know with reasonable certainty that the recipient of the service is a minor.

Systemic risks presented by very large platforms

Very large online platforms and search engines, which present the highest risk, will have to comply with stricter obligations, enforced by the Commission. These include preventing systemic risks (such as the dissemination of illegal content, adverse effects on fundamental rights, on electoral processes and on gender-based violence or mental health) and being subject to independent audits.

Governance

To ensure effective and uniform implementation of the obligations under the digital services act, the Commission will have exclusive powers to monitor very large online platforms and search engines for compliance with their obligations. They will be supervised at European level in cooperation with the Member States. This new supervisory mechanism maintains the country of origin principle, which will continue to apply to other actors and requirements covered by digital services act.

T9-0269/2022

Debate in Parliament

GEDA/A/(2022)004690

PE734.311

PE734.311

The European Parliament adopted amendments to the proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC.

The matter was referred to the committee responsible for inter-institutional negotiations.

The main amendments adopted in plenary relate to the following points:

Subject matter and scope

The draft legislation on digital services clearly defines the responsibilities and obligations of intermediary service providers, in particular online platforms, such as social media and marketplaces. It would apply to intermediary services provided to service recipients whose place of establishment or residence is in the EU, irrespective of the place of establishment of the service providers. Micro and small enterprises would be exempt from certain obligations related to the legislation.

Notification and action procedure

All hosting service providers, regardless of their size, should put in place easily accessible, comprehensive and user-friendly notification and action mechanisms , allowing easy notification to the hosting service provider concerned of material which the notifying party considers to be illegal content (‘notification’).

Hosting service providers should act on notifications without undue delay, taking into account the type of illegal content notified and the urgency to act, and should inform the person or entity notifying the specific content of its decision as soon as possible.

Members also provided for stronger safeguards to ensure that notifications are dealt with in a non-arbitrary and non-discriminatory manner and with respect for fundamental rights, including freedom of expression.

Removal of illegal content

Members suggested linking the concept of ‘illegal content’ to the general idea that ‘ what is illegal offline should also be illegal online ’. The proposed measures include clearly defined procedures for removing illegal products, services and content online.

Online platforms would be empowered to suspend , for a reasonable period of time and after issuing a prior warning, the provision of their services to recipients of the service who frequently provide illegal content, whose illegal content can be established without legal or factual examination, or who have received two or more orders to act regarding illegal content in the previous 12 months, unless those orders were alter overturned.

Traceability of traders

Online platforms that allow consumers to conclude distance contracts with traders should obtain additional information on the trader and the products and services they intend to offer on the platform. Prior to offering its services to the trader, the online platform operator should make best efforts to assess if the information provided by the trader is reliable.

Online platforms should demonstrate that they are doing their utmost to prevent the dissemination of illegal products and services by traders and should inform beneficiaries when the service or product they have acquired through them is illegal.

Where an online platform becomes aware that a product or service offered by a trader on its interface is illegal, it should promptly remove the illegal product or service from its interface and, where appropriate, inform the relevant authorities, and make available to the public a register containing information on illegal products and services removed from its platform in the last 12 months.

Targeted advertising

Online platforms should ensure that recipients of the service can refuse or withdraw their consent for targeted advertising purposes in a way that is not more difficult nor time-consuming than to give their consent. Refusing consent in processing personal data for the purposes of advertising should not result in access to the functionalities of the platform being disabled. Alternative access options should be fair and reasonable both for regular and for one-time users, such as options based on tracking-free advertising .

Online platforms should also not use personal data for commercial purposes related to direct marketing, profiling and behaviourally targeted advertising of minors . Targeting individuals on the basis of special categories of data which allow for targeting vulnerable groups should not be permitted.

Increased transparency of algorithms

Providers' terms and conditions should be drafted in clear and unambiguous language. They should include information on the policies, procedures, measures and tools used for content moderation purposes, including algorithmic decision-making, human review, and the right to terminate the use of the service.

Online platforms should refrain from using deceiving or nudging techniques to influence users’ behaviour through ‘dark patterns’. These techniques may be used to encourage the acceptance of terms and conditions, including giving consent to sharing personal and non-personal data.

Members also called for more choice over algorithm-based ranking: the parameters of recommender systems should be presented in an easily understandable way so that recipients understand how information is prioritised for them. Very large online platforms should let recipients decide whether they want to be subject to recommender systems that rely on profiling and ensure that a non-profiling option is available.

Compensation

Recipients of the service should have the right to seek, in accordance with relevant Union and national law compensation from providers of intermediary services, against any direct damage or loss suffered due to an infringement by providers of intermediary services of obligations established under this Regulation.

Other aspects

Other amendments adopted in plenary include:

- accessibility requirements for online platforms to ensure full, equal and unrestricted access to intermediary services for all recipients of services, including persons with disabilities;

- additional obligations for platforms used primarily for the distribution of user-generated pornographic content , including the obligation to ensure professional moderation of content by a human being trained to detect image-based sexual abuse;

- the need for providers to respect freedom of expression, freedom and media pluralism in their terms and conditions, as well as a provision on the right to use and pay for digital services anonymously;

- combating the spread of disinformation by introducing provisions on mandatory risk assessment, risk mitigation measures, as well as the accountability of very large online platforms to an independent external audit .

T9-0014/2022

Debate in Parliament

COM(2020)0825

The Committee on the Internal Market and Consumer Protection adopted the report by Christel SCHALDEMOSE (S&D, DK) on the proposal for a regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC.

The committee recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should amend the Commission's proposal as follows:

Scope

Members stipulated that the proposed regulation should apply to intermediary services provided to recipients of the service that have their place of establishment or residence in the Union, irrespective of the place of establishment of the providers of those services. It should not apply to any service that is not an intermediary service or to any requirements imposed in respect of such a service, irrespective of whether the service is provided through the use of an intermediary service.

Removing illegal content

The amended text stated that online platforms should:

- be entitled to suspend, for a reasonable period of time and after having issued a prior warning, the provision of their services to recipients of the service that frequently provide illegal content, for which the illegality can be established without conducting a legal or factual examination or for which they have received two or more orders to act regarding illegal content in the previous 12 months, unless those orders were later overturned;

- suspend, for a reasonable period of time and after having issued a prior warning, the processing of notices and complaints submitted through the notice and action mechanisms and internal complaints handling systems, respectively, by individuals or entities or by complainants that frequently submit notices or complaints that are unfounded.

Advertisements to minors

The report stressed that online platforms should take steps to phase out collecting or processing personal data for the purpose of targeting recipients for non-commercial and political advertising, in favour of contextual advertising. The same would apply to targeting people based on sensitive data, or to targeting minors.

For the purpose of targeting the recipients to whom advertisements for commercial purposes are displayed, online platforms should offer users the possibility to easily opt-out from micro-targeted tracking and advertisements that are based on their behaviour data or other profiling techniques.

Algorithms and dark patterns

The amended text called for providers of intermediary services to include information on any policies, procedures, measures and tools used by the provider of the intermediary service for the purpose of content moderation, including algorithmic decision-making and human review.

Online platforms should refrain from using deceiving or nudging techniques to influence users’ behaviour through ‘ dark patterns ’. These techniques may be used to encourage the acceptance of terms and conditions, including giving consent to sharing personal and non-personal data.

Moreover, the Digital Services Coordinator of each Member State, by means of national legislation, may request a very large online platform to cooperate with the Digital Services Coordinator of the Member State in question in handling cases involving the removal of lawful content online that is taken down erroneously.

The report also called for increased accountability on algorithms.

Pornographic content

Where an online platform is primarily used for the dissemination of user-generated pornographic content, the platform should take the necessary technical and organisational measures to ensure: (i) that users who disseminate content have verified themselves through a double opt-in e-mail and cell phone registration ; (ii) professional human content moderation , trained to identify image-based sexual abuse, including content having a high probability of being illegal; (iii) the accessibility of a qualified notification procedure in the form that individuals may notify the platform with the claim that image material depicting them or purporting to be depicting them is being disseminated without their consent and supply the platform with prima facie evidence of their physical identity.

The amended text stipulated that content notified through this procedure is to be suspended without undue delay.

Complaints and compensation

The amended text noted that online platforms should handle complaints submitted through their internal complaint-handling system in a timely, non-discriminatory, diligent and non-arbitrary manner and within ten working days starting on the date on which the online platform received the complaint. Upon receipt of the complaint, the Digital Services Coordinator of establishment should assess the matter in a timely manner and should inform within six months the Digital Services Coordinator of the Member State where the recipient resides or is established if it intends to proceed with an investigation. Recipients of the service should have the right to seek compensation from providers of intermediary services, against any direct damage or loss suffered due to an infringement by providers of intermediary services of obligations established under the proposed regulation.

A9-0356/2021

COM(2020)0825

PE693.929

PE693.717

PE693.943

PE691.254

PE694.960

PE693.552

PE692.898

PE695.150

PE695.157

PE695.158

PE695.159

PE695.160

PE695.161

PE695.162

PE695.163

PE695.164

COM(2020)0825

CDR5356/2020

PE693.594

COM(2020)0825

COM(2020)0825

COM(2020)0825

COM(2020)0825

SWD(2020)0349

COM(2020)0825

SWD(2020)0348

COM(2020)0825

OJ C 149 27.04.2021, p. 0003
N9-0020/2021

SEC(2020)0432

SWD(2020)0348

EUR-Lex
SWD(2020)0349

PURPOSE: to lay down harmonised rules on the provision of digital services in the internal market (Digital Services Act).

PROPOSED ACT: Regulation of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: information society services and especially intermediary services have become an important part of the EU’s economy and daily life of Union citizens. Twenty years after the adoption of the existing legal framework applicable to such services laid down in e-Commerce Directive 2000/31/EC, new and innovative business models and services, such as online social networks and marketplaces, have allowed business users and consumers to impart and access information and engage in transactions in novel ways.

A majority of EU citizens now use those services on a daily basis. However, the digital transformation and increased use of those services has also resulted in new risks and challenges, both for individual users and for society as a whole.

The proposed Digital Services Act and Digital Markets Act encompass a single set of new rules applicable across the whole EU. They will create a safer and more open digital space, with European values at its centre.

CONTENT: the main objective of this proposal is to ensure the proper functioning of the internal market, in particular in relation to the provision of cross-border digital services (more specifically, intermediary services). It aims to ensure harmonised conditions for innovative cross-border services to develop in the EU, by addressing and preventing the emergence of obstacles to such economic activity resulting from differences in the way national laws develop, taking into account that several Member States have legislated or intend to legislate on issues such as the removal of illegal content online, diligence, notice and action procedures and transparency.

The proposed regulation lays down harmonised rules on the provision of intermediary services in the internal market. In particular, it establishes:

- a framework for the conditional exemption from liability of providers of intermediary services;

- rules on specific due diligence obligations tailored to certain specific categories of providers of intermediary services;

- rules on the implementation and enforcement of this Regulation, including as regards the cooperation of and coordination between the competent authorities.

This proposal should apply to intermediary services provided to recipients of the service that have their place of establishment or residence in the Union, irrespective of the place of establishment of the providers of those services.

Specific provisions

The proposal lays down:

- measures to counter illegal goods, services or content online, such as a mechanism for users to flag such content and for platforms to cooperate with ‘trusted flaggers’;

- new obligations on traceability of business users in online marketplaces, to help identify sellers of illegal goods;

- effective safeguards for users, including the possibility to challenge platforms’ content moderation decisions;

- transparency measures for online platforms on a variety of issues, including on the algorithms used for recommendations;

- obligations for very large platforms to prevent the misuse of their systems by taking risk-based action and by independent audits of their risk management systems;

- access for researchers to key data of the largest platforms, in order to understand how online risks evolve;

- oversight structures to address the complexity of the online space: EU countries will have the primary role, supported by a new European Board for Digital Services; for very large platforms, enhanced supervision and enforcement by the Commission.

Budgetary implications

The budgetary impact of the proposal should be covered by the allocations foreseen in the multiannual financial framework 2021-2027 under the financial envelopes of the Single Market Programme and the Digital Europe Programme.

COM(2020)0825
EUR-Lex