The Digital Service ACT - effects in practice
The EU DSA was adopted in 2020 to create a comprehensive framework for online services. A further part of these provisions will come into force on 17.02.2024.
This applies to so-called hosting services.
Hosting services that offer their service within the EU must fulfill the following requirements:
- Set up a contact point for reports of suspected illegal content (e.g. via a special internal e-mail address that is operated seriously and conscientiously, preferably in German and English),
- Set out rules for moderating content within the T&Cs (e.g. define guidelines on which guidelines apply to illegal content),
- Establish a reporting and remediation procedure (e.g. by naming an internal e-mail address that authorities or third parties can use to report suspected violations of the law)
- Creation of a transparency report.
Significance for your own (company) website
In principle, the Digital Services Act (DSA) is primarily aimed at large marketplaces and platforms.
Nevertheless, a critical review of your own websites and store functions is essential. Due to the regulations set out in the DSA, your own website or store may also be affected.
Third-party content on your own website
Ultimately, the decisive question is whether third-party content, "user-generated content", is included in your own website. " 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 itself, but is written by visitors/users. This is therefore possible if, for example, a store has a function for comments or customer ratings.
If there is no comment or other possibility for third parties to place their own content on the website, the rules of the DSA do not apply.
"Insignificant secondary function"?
The decisive factor for the applicability of the DSA is the function of this third-party content. According to Article 3 i of the DSA, it is an online platform if this content is not merely an "insignificant ancillary function".
The explanatory memorandum to the law cites the comments section of an online newspaper as an example of an insignificant secondary function. The focus here is obviously on the publications of the newspaper itself. The comments are only a secondary function.
A social network, on the other hand, which thrives on the fact that many different people post contributions, is a platform that is affected by the DSA.
Therefore, an online store that only has a comment or rating function, for example, should generally not fall under the provisions of the DAS. If, on the other hand, the focus is on comments and ratings - for example in a type of forum - the provisions of the Digital Services Act should be considered.
In the end, it depends on the individual case. If you have any questions, please contact us.
