Does the Digital Services Act Apply to You? Here’s What You Need to Know.

Navigating the complexities of the Digital Services Act (DSA) can feel like sailing through treacherous digital waters.

The Digital Services Act (DSA) is a landmark legislation within the European Union, establishing accountability for digital service providers regarding the content that appears on their platforms.

If you're scratching your head, wondering if and how the DSA impacts your platform, you're not alone. To clear the confusion, we’ve put together a set of questions and answers, that can help you understand how the digital services act impacts you.

Whether your platform is a bustling social media hub, a cloud storage service, or an online marketplace teeming with user-generated content, understanding the DSA is crucial.

Today we will guide you through the definitions of different online services and what qualifies as an online platform under this new EU regulation.

First, let’s find out if you have to start getting ready for the DSA.

Does The Digital Services Act Apply To You?

The DSA applies to organizations that provide online intermediary services in the EU. What does this mean?

Here are a few key questions you can ask:

1. Does my platform host any user content such as images, text, video, or audio?
2. Does my platform allow for users to interact and share messages or other types of content?
3. Does my platform have users in the European Union?

If you answered yes to questions 1 or 2, and yes to 3, the DSA very likely applies to your platform.

However, not all intermediaries are created equal, and certain rules won't apply to you.

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The DSA for Intermediary Services

The legislative text describes an intermediary service as all providers of intermediary services (including ‘mere conduits’ and providers of ‘caching’ and ‘hosting’ services), regardless of further sub-classification under any other tier.

Not that clear, right?  

You can interpret this to mean platforms that transmit or store third-party content for EU-based users, spanning a broad range of activities in the digital sphere.

This includes social media services, messaging services, cloud infrastructure services, content delivery networks, etc.  

The EU states that more than 10,000 companies are subject to the DSA, so if you store any user-generated content from EU users, you are subject to the DSA.

✅ A DSA item that all intermediary services have to comply with is Transparency Reporting:

Other items include Terms & Conditions public notice and drafting, designation of legal representatives, user communications specificities.

The DSA for Hosting Services

The legislation describes a hosting service as a type of intermediary services that involves storing information provided by (and at the request of) a service recipient, e.g., web hosting and cloud services.  

The key terms here being storage at the request of another party.

'Hosting services' encompass a range of service types like cloud storage solutions, website hosting, sponsored search listings, and platforms that facilitate the online distribution of information and content, including services for storing and sharing files.

✅ Among other things, all Hosting Services have to provide special Notice and Action mechanisms defined by the DSA:

The DSA for Online Platforms

An Online platform is defined as a type of hosting service that, at the user’s request, stores and makes publicly available user-provided information.

For example, social media platforms, online forums (including both the classic media portals as well as rating portals, app stores etc.

✅ Under the Digital Services Act, Online Platforms have specific Transparency Reporting requirements, as well advertising provisions, interface design directives, and a handful of other items.

What About Online platforms with 3P traders?

3P Marketplace stands for third-party marketplace. This is a sub-type of online platform in which the marketplace is open to peer-to-peer purchasing, meaning the products and services are not provided by the platform itself.

Whether your platform is solely dedicated to 3P trading (i.e. as Vinted or Depop) or has a 3P trading component (i.e. Facebook marketplace) you have to be compliant with the DSA.

✅ Traceability of traders and compliance by design are among the DSA items dedicated to online platforms that offer third party trading.

VLOPs (Very Large Online Platforms)

This is an honorable mention - but note that there is another DSA designation called a VLOP (very large online platform) or a VLOSE (very large online search engine).

These platforms are specifically designated by the EU Commission.

So, who are the VLOPs according to the DSA?

• Alibaba/Aliexpress
• Amazon Store
• Apple AppStore
• Booking.com
• Facebook
• Google Maps / Play / Shopping
• Instagram
• LinkedIn
• Pinterest
• Snapchat
• TikTok
• X (formerly Twitter)
• Wikipedia
• YouTube
• Zalando
• Bing (VLOSE)
• Google Searh (VLOSE)

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I Have to Be Compliant Under the DSA, What Does That Mean?

From February 17th 2024, all providers of online platforms, with the exception of micro and small enterprises, will have to submit data on their content moderation decisions.

This means that you should be getting acquainted with all the items inside the Digital Services Act, and making sure that you’re covering all your bases. This will be a combined effort between legal and tech – as some of the items on the list (for example, the Notice and Action Mechanism) require specific workflows that can be tricky to handle in-house.