The enforcement of the European Union’s Digital Services Act (DSA) has started, with 19 major online platforms and search engines facing potential fines and bans for non-compliance
The enforcement of the EU Digital Services Act (DSA) has commenced, requiring large online platforms and search engines to adhere to new legal requirements aimed at combating online hate speech and disinformation. The Act, which came into force in November 2022, mandates platforms with over 45 million active monthly users, or 10% of the EU’s population, to publish their active user numbers, submit regular risk assessments to the European Commission, and comply with stricter content moderation rules. Non-compliance may result in fines up to 6% of a company’s total worldwide annual turnover or a ban from the EU’s Single Market.
While the DSA will be fully applicable from spring 2024, the European Commission has already been in regular contact with the 19 designated very large online platforms (VLOPs) and very large online search engines (VLOSEs), offering to conduct voluntary stress tests. The Commission is empowered to monitor and sanction these platforms, although national authorities will continue to monitor platforms registered in their respective countries. Platforms will remain non-liable for hosted content but must follow new requirements regarding content moderation systems, notification of illicit content, prohibition of dark patterns, and cooperation with law enforcement authorities.
Despite these efforts, challenges remain, including the risk of “risk assessment washing” due to the lack of third-party involvement in drafting risk assessments, as noted by Claire Pershan, EU Advocacy Lead from the Mozilla Foundation. Additionally, experts have raised concerns about possible skills shortages affecting third-party auditors, national regulators, and the European Commission. Peggy Müller, a partner at ADVANT Beiten, highlighted that this issue might be particularly acute for Germany, which is already experiencing a lack of qualified personnel.
The DSA also introduces the concept of “trusted flaggers,” entities with proven expertise in flagging harmful or illegal content, whose content flagging shall be prioritized by platforms. However, these entities, many of which are likely to be NGOs, will need to acquire digital skills and financial backing to effectively flag illicit content. Legal uncertainty also persists, as evidenced by complaints filed by Zalando and Amazon challenging their classification as VLOPs. Smaller platforms, with monthly users below the 45 million threshold, will be subject to the DSA rules from 24 February 2024, prompting lawyer Jean-Sébastien Mariez to advise companies to start implementing compliance plans.