2.2. The Digital Services Act Package

2.2.1. Digital Services Act (DSA)

In December 2020, the EC published a regulation proposal for the Digital Services Act (DSA) aiming to harmonise the rules on the provision of intermediary services in the internal market, while revising the 20 years old e-Commerce Directive and creating several layers of due diligence obligations for intermediary services. The DSA, differing from the e-Commerce Directive, categorises several actors, imposing differing obligations to each actor:
– Providers of intermediary services (Art. 2(f))
– Hosts and online platforms providers (Art. 2(h))
– Online platforms
– Very large online platforms (VLOPS) (Art. 25)

Briefly, the DSA proposed a series of EU-wide obligations for digital services such as:
– Rules for the removal of illegal goods, services or content online (notice and action and obligations to provide information to users)
– Requirements on terms of service
– New obligations for very large platforms to take risk-based action to prevent abuse of their systems
– Transparency measures, including on online advertising and recommender systems
– Provisions on the access by researchers to key platform data
– Rules on traceability of business users in online marketplaces
– Oversight structure, a new European Board for Digital Services, enhanced supervision and enforcement by the Commission of the very large platforms

2.2.2. The Digital Markets Act (DMA)

The proposal for regulation on contestable and fair markets in the digital sector better known as the Digital Markets Act (DMA), was released on 15 of December 2020. The text introduces rules for platforms acting as gatekeepers to prevent them from unfair practices such as imposing unfair conditions on businesses and consumers and ensuring the openness of important digital services. The text aims to complement the competition framework by adding specific rules for the digital actors. The DMA provisions are without prejudice to the existing competition rules both European (such as article 101, 102 TFEU) and the national competition rules applicable regarding unilateral behaviour.

Briefly, the DMA sets out the following provisions regarding companies considered as “gatekeepers”:
1. The proposal prevents the gatekeeper from:
– Combining personal data from their core platform services with data not publicly available from other sources (including other services offered by the gatekeeper)
– Treating more favourably in ranking services and products offered by the gatekeeper itself
– Technically restricting the ability of end-users to switch between different software applications
2. Gatekeepers must also comply with a set of obligations
– They must allow the installation and use of third-party software and applications which are interoperable with the gatekeeper’s core platform services
– They must provide business users and third parties with access to data, including consumer data, provided for or generated in the context of their use of core platform services

Lidia Dutkiewicz, Emine Ozge Yildirim, Noémie Krack from KU Leuven
Lucile Sassatelli from Université Côte d’Azur