The Genesis of the Digital Services Act

The DSA, proposed in December 2020, is part of the European Union’s efforts to regulate the digital single market. The legislation aims to modernize the legal framework for digital services in the EU, which has largely been governed by the E-Commerce Directive of 2000. The E-Commerce Directive was enacted when the digital landscape was vastly different, and many of its provisions have become obsolete in today’s context. The DSA seeks to fill these gaps, and account for the evolution and expansion of digital services.

The Current State of the Digital Services Act

The DSA is currently under review by the European Parliament and the Council of the European Union. The proposed legislation focuses on regulating large online platforms, referred to as ‘gatekeepers’. These gatekeepers have a significant impact on the internal market and hold a strong intermediary position, enabling them to control users’ access to the online market. The DSA proposes stricter obligations for these platforms to ensure they act in a fair and open manner.

The DSA and Liability of Online Platforms

One of the key features of the DSA is the shift in liability for illegal content. Under the E-Commerce Directive, online platforms were generally shielded from liability for illegal content posted by their users, as long as they acted swiftly to remove it once notified. However, the DSA seeks to impose a higher duty of care on platforms, particularly on larger ones, to proactively detect, remove, and prevent the spread of illegal content.

The Implications of the DSA

The DSA has the potential to significantly alter the digital landscape. With stricter regulations and higher accountability for online platforms, it may lead to a more transparent, fair, and secure digital environment for users. However, it also raises valid concerns about the burden placed on platforms, particularly smaller ones, and the risk of excessive censorship due to the increased liability. On a broader scale, the DSA may also influence global norms for digital regulation, given the EU’s significant role in the digital market.

Conclusion

The Digital Services Act represents a monumental shift in the digital regulatory framework. It underscores the need for updated legislation that addresses the complexities of today’s digital landscape. As the DSA navigates the legislative process, its final form and ultimate impact remain to be seen. Regardless of the outcome, the DSA serves as a testament to the growing recognition of the importance of robust, updated, and comprehensive digital regulation.