Negotiators from the EU Council and the European Parliament reached, late Friday night 22 April into Saturday 23, a provisional agreement on the Digital Services Act (DSA) (see EUROPE 12937/12) after more than 16 hours of discussions.
“With the DSA, we help create a safe and responsible online environment. (...) With today's agreement we ensure that platforms are held accountable for the risks their services can pose to society and citizens”, said Margrethe Vestager, European Commission Executive Vice-President for a Europe Fit for the Digital Age.
“We have finally made sure that what is illegal offline is also illegal online”, added Christel Schaldemose (S&D, Denmark), the Parliament’s rapporteur on the dossier.
In terms of scope, the DSA’s obligations will thus cover large search engines and online platforms with more than 45 million monthly active users in the EU.
In addition, intermediary services offering network infrastructure, such as Internet service providers or domain name registrars and online hosting or cloud services, will be affected.
Online platforms that bring together sellers and consumers, such as online marketplaces, app stores, collaborative economy platforms and social media will also have to comply with the DSA.
These marketplaces will have a due diligence obligation towards the sellers who use their interface and will also have to collect and display information about the products and services sold, in order to ensure traceability and good consumer information.
SMEs and start-ups that do not reach the threshold of 45 million monthly active users in the EU will be exempted from certain obligations.
Ban on targeted advertising for minors
The provisional agreement firstly introduces the possibility for the Commission and the Member States to access the algorithms of very large online platforms.
Illegal online content will have to be promptly removed and the ‘notice and action’ procedure, through which users will be empowered to report illegal online content, will be clarified.
The co-legislators also managed to agree on the long-debated issue of targeted advertising. This will be prohibited for minors as well as in cases where it is based on sensitive data such as sexual orientation, religion or ethnic origin.
New provisions will also be introduced to oblige platforms to increase transparency in order to better inform users about how content is recommended to them. They will also have to have at least one option that is not based on profiling.
Another point discussed at length during the last trilogue was dark patterns, which push users to accept certain conditions or to stay longer on a service. These methods will now be prohibited for platforms that meet the criteria included in the DSA.
Also on the prohibition front, platforms will no longer be able to use ‘dark patterns’ to entice people to use their services or to change their choices through annoying pop-up windows. Cancelling a subscription to a service should be as easy as subscribing to that service, the provisional agreement states.
Finally, a new article was also introduced, in the context of the Russian invasion of Ukraine, to establish a Crisis Response Mechanism. This can be activated by the Commission to analyse effective measures to counter the consequences of online information manipulation.
Sanctions and reparations
Failure to comply with the DSA rules can result in fines of up to 6% of annual global turnover for platforms and search engines. In case of serious and repeated breaches, the Commission could also decide to ban the activities of the company concerned within the EU Single Market.
In turn, recipients of digital services will be able to claim compensation for any damage suffered as a result of breaches committed by the offending platforms.
The latter will have to analyse the systemic risks they create each year in order to limit the risks of illegal content or the negative effects on fundamental rights. Independent audits will be carried out annually in the very large platforms.
The starting point for more profound change
While many welcomed the provisional agreement on the DSA, some MEPs, such as Patrick Breyer (Greens/EFA, Germany), wanted to go further.
“This disappointing result fails in many ways to protect our fundamental rights online. Our online privacy will not be protected by a right to use digital services anonymously nor by a right to encryption, a ban on data retention or a right to generally refuse surveillance advertising in your browser”, he said.
“Today, the Parliament has squandered a great opportunity to make the Internet fairer and more user-friendly for European citizens. As I have emphasised from the beginning, the rules of the Internet must be people-centred in the first place. And this is certainly not the case with today’s result”, said Marcel Kolaja (Greens/EFA, Czech Republic).
On the organisations’ side, the Association of Commercial Television and Video on Demand Services in Europe (ACT) congratulated the co-leaders while insisting on remaining “vigilant” regarding the future implementation of the DSA.
For the European Digital Rights (EDRi), while the DSA “will help phase out some of the worst practices of ad-driven online platforms”, it “can only be the starting point for more profound change”.
In addition, EDRi said it had been “very concerned” that the Crisis Response Mechanism had been added “at the 11th hour as a response to the Russian war of aggression against Ukraine”. “Temporary crises should not lead to permanent infrastructures of state control”, the NGO network summarised. (Original version in French by Thomas Mangin)