Digital Services Act: full application from now on!

Already applicable to Very Large Online Platforms and Very Large Online Search Engines for a few months now, 17 February 2024 marked the day on which the Digital Services Act1  (the “DSA”) has applied in its entirety to all providers of intermediary services (digital services) offered to users located in the European Union (irrespective of the place of establishment of these providers).

The providers of digital services targeted by the DSA are, for example:

  • internet service providers, 
  • providers of website hosting services and cloud computing services, or
  • online platforms (online marketplaces, content sharing platforms, social networks, etc.). 

Very Large Online Platforms and Very Large Online Search Engines are qualified as such and subject to the strictest obligations set out by the DSA, when online platforms and search engines have a number of average monthly active users of their service in the EU equal to or higher than 45 million.

Graduated obligations arise from the DSA depending in particular on the nature of the digital services rendered and the number of average monthly active users. 

Here are some examples of the obligations set out in the DSA:

  • making reports publicly available which describe the activities of the digital services providers regarding content moderation;
  • implementing notice and action mechanisms allowing users to notify content they consider to be illegal;
  • providing internal complaint-handling systems allowing users to lodge complaints against decisions made by the providers with respect to illicit content;
  • transparency obligations related to advertising;
  • implementing appropriate and proportionate measures to ensure the security of minors on online platforms; or
  • disclosing, via the terms and conditions, the main parameters used in recommender systems (as well as the way users may influence those parameters).

It should be noted that micro and small enterprises (companies with fewer than 10 or 50 employees and an annual turnover or balance sheet total not exceeding 2 or 10 million euros) are exempt from certain obligations imposed on online platforms.

Non-compliance with the provisions of the DSA may lead to fines of up to 6% of the annual worldwide turnover of the provider of digital services concerned in the preceding financial year.

Although self-executing, the DSA requires Member States to designate their Digital Services Coordinator, which will be responsible for the supervision of digital services providers and enforcement of the DSA.  

In Luxembourg, the draft Bill 8309 dated 14 September 2023, still under review, plans to designate as Digital Services Coordinator the Autorité de la concurrence (Luxembourg Competition Authority). 

1 Regulation (EU) 2022/2065 of the European Parliament and of The Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (the “Digital Services Act”)