Layer three: Online platforms and market places

Online platforms are defined in the DSA as providers of hosting services that publicly disseminate users’ information. The EC expressly states that social networks, online marketplaces, app stores, online travel and accommodation websites, content-sharing websites and collaborative economy platforms qualify as online platforms.

The concept ‘dissemination to the public’ must be interpreted as making the information accessible to an unlimited number of persons. Dissemination within closed groups consisting of a finite number of pre-determined persons is not dissemination to the public and such services will not qualify as hosting an online platform. The DSA further excludes email or private messaging services from the scope of the definition of “online platform”. The online platforms obligations do not apply to platforms that are micro or small enterprises.

Although traders are not targeted by these new DSA requirements, they will be directly affected by these new requirements.

Obligations

Under the DSA, online platforms must:

Publish the average monthly active recipients in the last six months on their online interface;
Treat notices filed by trusted flaggers with priority. The status of trusted flagger will be bestowed by the national authorities on independent entities that have particular expertise in detecting illegal content (eg industry associations). These trusted flaggers must also publish public reports on the notices that they have filed and the effect given to these notices by the different providers;
Submit the statements of reasons to a public database managed by the EC
Design their online interfaces in a way ability of recipients of their service to make free and informed decisions is not impaired. The EC will provide further guidance on the following practices (i) giving more prominence to certain choices when asking the recipient of the service for a decision, (ii) repeatedly requesting a recipient of the service to make a choice where such a choice has already been made, or (iii) making the procedure of terminating a service more difficult than subscribing to it;
Provide a high level of privacy, safety, and security for minors, including a prohibition on presenting advertising based on profiling when the provider is aware with reasonable certainty that the recipient is a minor;
Provide transparency on advertisements by ensuring that for each specific advertisement, the recipient can identify (i) that the information displayed is an advertisement; (ii) the person on whose behalf the advertisement is displayed, (iii) meaningful information about the main parameters used to determine the recipient to whom the advertisement is displayed;
Set out in their terms and conditions the main parameters used in their recommender systems, as well as options to modify or influence those main parameters. Recommender systems are the systems used by an online platform to suggest or rank the information shown to its users.
Provide an internal complaint-handling system for decisions concerning content moderation;
Arrange a certified out-of-court mediation mechanism for decisions concerning content moderation.

Additional rules for online marketplaces

In addition to those general obligations applicable to any online platform, the DSA imposes special obligations on online platforms that allow consumers to conclude distance contracts with traders. Such online marketplace must:

1. Implement a Know-Your-Customer program

providers must ensure that traders can only use their services to advertise or offer products or services to EU consumers if the provider has obtained the specific information from traders, including contact details, identification, payment details, commitment from the trader to only offer products or services that comply with EU law;
online marketplaces must make best efforts to assess whether the information is reliable and complete;

2. Perform due diligence on the products and services

providers must check that traders have provided certain information on the products or services prior to allowing traders to offer them on the online marketplace;
such information must include (i) the information necessary for the identification of the products or the services and (ii) where applicable, information concerning the labelling and marking in compliance with rules of EU law on product safety and product compliance;
providers must randomly check the potential illegality of offered products and services;

3. Inform consumers if the provider is aware that they have bought an illegal product or service on the online marketplace in the last six months

A layered approach to imposing obligations

Layer one: Providers of intermediary services

This covers a broad range of digital service providers in the EU including internet service providers, content distribution networks, web-based messaging services and wireless local area networks.

Leads connected to the back of a computer

Layer two: Providers of hosting services

Services that consist of the storage of information provided by, and at the request of, a recipient of the service (such as webhosting or cloud services).

Layer four: Very large online platforms and search engines

Online platforms or search engines that have 45 million or more active monthly users in the EU.