On the 2 June 2020 the European Commission initiated an open public consultation as part of its evidence-gathering exercise to inform the contents of the upcoming Digital Services Act (DSA) legislative package (expected to be put forward in late 2020). The consultation seeks to gather views, evidence and data from a variety of interested parties including:

  • individuals;
  • businesses;
  • online platforms;
  • academics; and
  • civil society.

The consultation covers issues such as safety online, freedom of expression, fairness and a level playing field in the digital economy. The consultation will run until 8 September 2020.

What is the Digital Services Act and how did we get here?

The DSA is a landmark legislative package first announced by Commission President Ursula von der Leyen in her political guidelines back in July 2019 and is expected to reinforce the single market for digital services, upgrade the EU’s liability and safety rules for digital platforms and provide smaller businesses with the legal clarity and level playing field they need to compete effectively in the digital economy. Margrethe Vestager (the EC’s VP for Digital) has also expressed her hope that the DSA can be used to prevent the tipping of markets, where one company obtains high monopoly profits and market share, creating an anti-competitive environment for other firms.

The DSA comes in the wake of recent scandals regarding data harvesting and selling, Cambridge Analytica, fake news, political advertising and manipulation and a host of other online harms (from hate speech to the broadcast of terrorism). The IMCO (the EU Parliament’s Committee on the Internal Market and Consumer Protection) has also noted the relevance of the DSA in light of COVID-19 and recent abusive practices by traders selling fake or illegal products or imposing unjustified and abusive price increases or other unfair conditions on consumers.

On 24 April 2020 the IMCO published a draft report with recommendations to the Commission on the objectives and contents of the Digital Services Act. In particular, the IMCO recommended that the DSA should:

  • place greater transparency and compliance obligations on information society and internet service providers and their business customers;
  • introduce concrete measures (including a ‘notice-and-action mechanism’) to empower users to notify online intermediaries of the existence of potentially illegal content or behaviour;
  • close the existing legal loophole allowing suppliers based outside of the EU to sell products online to European customers which do not comply with Union rules on safety and consumer protection;
  • introduce ex-ante regulation of the ‘online gatekeepers’ of the digital economy (i.e. large platforms such as Google, Amazon and Facebook) so as to open up the market to new entrants; and
  • strengthen and modernise existing provisions on out-of-court settlement and court actions to allow for effective enforcement and consumer redress.

The DSA is expected to impact social media platforms, search engines, video gaming platforms, online marketplaces and other information society services and internet service providers.

See the official European Commission press release here.

Hayley Brady

Hayley Brady
Partner, Head of Digital and Media, London
+44 20 7466 2079

James Balfour

James Balfour
Associate, London
+44 20 7466 7582

Jeremy Purton

Jeremy Purton
Senior Associate, Digital TMT and Sourcing, London
+44 20 7466 2142