The EU Digital Services Act ("DSA") became fully applicable earlier this year on the 17 February 2024. The DSA is one of the cornerstones of the EU's digitisation strategy called "A Europe Fit for the Digital Age" alongside other forward-facing legislation such as the Digital Markets Act and the highly anticipated Artificial Intelligence Act.
Aim and Scope of the DSA
The DSA aims to create a safer digital space in which the fundamental rights of users are protected by targeting the spreading of illegal content online. It places strict obligations on providers of intermediary services ("Intermediaries") that facilitate the transmission of content online.
The five categories of Intermediaries within scope of the DSA are:
- Mere conduit service providers;
- Caching service providers;
- Hosting service providers;
- Online platforms; and
- Search engines.
Additionally, the DSA may impact (indirectly) all online businesses which make use of Intermediaries in the provision of their services. Indeed, all content made available online through the involvement of an Intermediary is subject to the DSA, particularly to the "notice and action mechanism" which is further explained below.
Key Obligations
The DSA imposes various obligations applicable to different categories of Intermediaries. Some of the obligations applicable to all Intermediaries and which require immediate implementation include:
- Designating single points of contact for communication with users and authorities;
- Updating terms and conditions to include information on restrictions to their service;
- Periodic transparency reporting on content moderation which they engage in; and
- Informing relevant authorities of the affect given to orders issued.
More burdensome obligations are applicable to hosting service providers, online platforms and search engines. Most notably, these Intermediaries are subject to the "notice and action mechanism" which requires them to implement a mechanism allowing any person to flag any content as allegedly "illegal content".
The Intermediary would then be required to assess the notification and take the necessary action, which could be suspension, restriction or take down of the content.
Interestingly, the DSA provides a very broad definition of "illegal content", which includes any information that is not in compliance with EU law or the law of any Member State.
Enforcement and Penalties
Enforcement of the DSA is entrusted to specific authorities in each Member State, termed Digital Services Coordinators ("DSC"). The DSC for Malta is the Malta Communications Authority ("MCA") as designated under the Digital Services Order (Designation and Enforcement).
Failure to comply with the DSA may result in hefty fines, with a maximum penalty of 6% of the Intermediary's annual worldwide turnover.
A penalty of 1% of the annual income or worldwide turnover and daily penalties not exceeding 5% of the average daily income or worldwide turnover may be imposed in cases where an Intermediary supplies incorrect or incomplete information, fails to submit to an inspection or fails to rectify incorrect information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.