The ACT Digital Service – Practical Implications
The EU's Digital Services Act (DSA) was enacted in 2020 to establish a comprehensive framework for online services. Another part of these provisions will take effect on February 17, 2024.
This applies to so-called hosting services.
Hosting services that offer their services within the EU must meet the following requirements:
- Establish a contact point for reporting suspected illegal content (e.g., via a dedicated internal email address that is managed seriously and conscientiously, preferably in German and English),
- Set forth rules regarding content moderation within the Terms and Conditions (e.g., establish guidelines specifying which policies apply to illegal content),
- Establishing a reporting and corrective action procedure (e.g., by providing an internal email address through which government agencies or third parties can report suspected legal violations)
- Preparing a transparency report.
Importance for Your Own (Company) Website
In general, the Digital Services Act (DSA) is primarily aimed at large marketplaces and platforms.
Nevertheless, a critical review of your own websites and online store features is essential. Due to the regulations set forth in the DSA, your own website or online store may also be affected.
Third-Party Content on Your Own Website
Ultimately, the decisive factor is whether a website contains third-party content, or “user-generated content.” “An online platform [is a] hosting service that stores and publicly distributes information on behalf of a user.”
This refers to content that is not published by the website operator, but is created by visitors or users. This is possible, for example, when an online store has a feature for comments or customer reviews.
If there is no comment section or other way for third parties to post their own content on the website, the DSA rules do not apply.
"An insignificant secondary function"?
The key factor in determining the applicability of the DSA is the function of this third-party content. According to Article 3(i) of the DSA, a platform is considered an online platform if this content is not merely an “insignificant ancillary function.”
The explanatory memorandum to the bill cites the comments section of an online newspaper as an example of a minor ancillary function. Here, the focus is clearly on the newspaper’s own publications. The comments are merely an ancillary function.
A social network, on the other hand—which thrives on having many different people post content—is a platform that is affected by the DSA.
Therefore, for example, an online store that merely offers a comment or review feature would generally not fall under the provisions of the DAS. If, on the other hand, the focus is on comments and reviews—such as in a forum—one should familiarize oneself with the requirements of the Digital Services Act.
Ultimately, it depends on the specifics of each individual case. If you have any questions, please contact us.
