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On 15 December 2020, the European Commission has published the Digital Service Act -DSA- and the Digital Market Act -DMA-. Their contents are already raising many questions.
The Digital Services Act package is an initiative of the European Commission, which has two dimensions: on the one hand, the issues of responsibility of digital platforms with regard to the content they publish, and on the other hand, the problems raised by the fact that certain large digital platforms acting as gatekeepers control increasingly large ecosystems of platforms
"We need better supervision for these large platforms, as we did for the banking system after the financial crisis." Thierry Breton, European Commissioner for the Internal Market
Proposal for an ex ante regulatory framework
The DSA has been published on 15 December. The European Commission has just closed its public consultation in which some major technology companies participated. In practice, coordinated action at European level, in the form of targeted regulation of these key players, is becoming necessary: this is what Arcep is advocating. And to insist on the ex ante nature of this regulation: it is not a question of sanctioning abuses but of recreating a framework for the normal functioning of the Internet in a global and preventive manner. Only an ex ante approach can enable everyone (consumers and businesses, citizens and civil society actors, researchers, etc.) to regain control over digital ecosystems.
Arcep proposes a toolbox of "remedies", inspired by the approach successfully implemented for several decades in the telecom sector. While some of these remedies could be applied to all structuring digital platforms (in particular those that strengthen the transparency of these players with regard to their users, whether individuals or professionals), they should essentially be mobilised on a case-by-case basis, in a targeted and proportionate manner. This is the case in particular for the interoperability of certain digital services (i.e. strengthening the capacity of certain websites, applications or operating systems to work better together to promote their users' freedom of choice)
It is important that these measures be applied only to a limited number of players: to this end, Arcep proposes a method for identifying these structuring digital platforms. It is based on indices characterising their essential dimension, their size, the complete ecosystem in which they are sometimes integrated, their capacity to collect and process a significant quantity of data or their role in the online advertising sector.
The second axis to be presented on 15 December, known as the Digital Market Act, concerns more specifically technology companies considered as "gatekeepers of the Internet", i.e. companies that offer digital services on which the commercial activities of other companies depend. This is for example the case of search engines like Google, since a consumer looking for a product sold by an online company will have to go through one of these engines to access it. The European Commission therefore aims to put in place a broad regulatory framework to prevent technology companies from taking advantage of their position as "gatekeeper of the Internet".
What obligations and control measures?
The DSA will distinguish between three types of platforms: intermediary services, which include storage providers, Internet Service Providers (ISPs); hosting companies; online platforms (mainly B2C) and large platforms. New control and monitoring mechanisms will be introduced
At European level, via the European Digital Services Committee
At Member State level, via control bodies such as the CNIL
With regard to technical intermediaries, the DSA adds an exception to the non-liability of the host, if the consumer has been informed that the service has been provided by the host or a legal person acting under its control. The host's liability regime is thus lightened.
As regards platforms, the DSA imposes the creation of a single point of contact or a legal representative and an obligation of transparency on the means of redress and online advertising.
They will also have to include in their TOS anything that may affect the delivery of services (e.g. the use of algorithms)
A free complaints service should be set up by providers.
Complaint notifications should be handled promptly. In this respect, the DSA requires the creation of a trusted reporter, who will receive notifications of illegal content.
The very large platforms will have to appoint a compliance officer and put in place risk management measures (impact analysis of the significant systemic risks of their services)