keyboard_tab Digital Service Act 2022/2065 EN

1.   Recipients of the service, including individuals or entities that have submitted notices, addressed by the decisions referred to in Article 20(1) shall be entitled to select any out-of-court dispute settlement body that has been certified in accordance with paragraph 3 of this Article in order to resolve disputes relating to those decisions, including complaints that have not been resolved by means of the internal complaint-handling system referred to in that Article.

Providers of high_tag_cloud' title='definition'>online_platforms shall ensure that information about the possibility for recipients of the service to have access to an out-of-court dispute settlement, as referred to in the first subparagraph, is easily accessible on their high_tag_cloud' title='definition'>online_interface, clear and user-friendly.

The first subparagraph is without prejudice to the right of the high_tag_cloud' title='definition'>recipient_of_the_service concerned to initiate, at any stage, proceedings to contest those decisions by the providers of high_tag_cloud' title='definition'>online_platforms before a court in accordance with the applicable law.

2.   Both parties shall engage, in good faith, with the selected certified out-of-court dispute settlement body with a view to resolving the dispute.

Providers of high_tag_cloud' title='definition'>online_platforms may refuse to engage with such out-of-court dispute settlement body if a dispute has already been resolved concerning the same information and the same grounds of alleged illegality or incompatibility of content.

The certified out-of-court dispute settlement body shall not have the power to impose a binding settlement of the dispute on the parties.

3.   The Digital Services Coordinator of the Member State where the out-of-court dispute settlement body is established shall, for a maximum period of five years, which may be renewed, certify the body, at its request, where the body has demonstrated that it meets all of the following conditions:

(a)

it is impartial and independent, including financially independent, of providers of high_tag_cloud' title='definition'>online_platforms and of recipients of the service provided by providers of high_tag_cloud' title='definition'>online_platforms, including of individuals or entities that have submitted notices;

(b)

it has the necessary expertise in relation to the issues arising in one or more particular areas of high_tag_cloud' title='definition'>illegal_content, or in relation to the application and enforcement of high_tag_cloud' title='definition'>terms_and_conditions of one or more types of high_tag_cloud' title='definition'>online_platform, allowing the body to contribute effectively to the settlement of a dispute;

(c)	its members are remunerated in a way that is not linked to the outcome of the procedure;

(d)	the out-of-court dispute settlement that it offers is easily accessible, through electronic communications technology and provides for the possibility to initiate the dispute settlement and to submit the requisite supporting documents online;

(e)	it is capable of settling disputes in a swift, efficient and cost-effective manner and in at least one of the official languages of the institutions of the Union;

(f)	the out-of-court dispute settlement that it offers takes place in accordance with clear and fair rules of procedure that are easily and publicly accessible, and that comply with applicable law, including this Article.

The Digital Services Coordinator shall, where applicable, specify in the certificate:

(a)	the particular issues to which the body’s expertise relates, as referred to in point (b) of the first subparagraph; and

(b)	the official language or languages of the institutions of the Union in which the body is capable of settling disputes, as referred to in point (e) of the first subparagraph.

4.   Certified out-of-court dispute settlement bodies shall report to the Digital Services Coordinator that certified them, on an annual basis, on their functioning, specifying at least the number of disputes they received, the information about the outcomes of those disputes, the average time taken to resolve them and any shortcomings or difficulties encountered. They shall provide additional information at the request of that Digital Services Coordinator.

Digital Services Coordinators shall, every two years, draw up a report on the functioning of the out-of-court dispute settlement bodies that they certified. That report shall in particular:

(a)	list the number of disputes that each certified out-of-court dispute settlement body has received annually;

(b)	indicate the outcomes of the procedures brought before those bodies and the average time taken to resolve the disputes;

(c)	identify and explain any systematic or sectoral shortcomings or difficulties encountered in relation to the functioning of those bodies;

(d)	identify best practices concerning that functioning;

(e)	make recommendations as to how to improve that functioning, where appropriate.

Certified out-of-court dispute settlement bodies shall make their decisions available to the parties within a reasonable period of time and no later than 90 calendar days after the receipt of the complaint. In the case of highly complex disputes, the certified out-of-court dispute settlement body may, at its own discretion, extend the 90 calendar day period for an additional period that shall not exceed 90 days, resulting in a maximum total duration of 180 days.

5.   If the out-of-court dispute settlement body decides the dispute in favour of the high_tag_cloud' title='definition'>recipient_of_the_service, including the individual or entity that has submitted a notice, the provider of the high_tag_cloud' title='definition'>online_platform shall bear all the fees charged by the out-of-court dispute settlement body, and shall reimburse that recipient, including the individual or entity, for any other reasonable expenses that it has paid in relation to the dispute settlement. If the out-of-court dispute settlement body decides the dispute in favour of the provider of the high_tag_cloud' title='definition'>online_platform, the high_tag_cloud' title='definition'>recipient_of_the_service, including the individual or entity, shall not be required to reimburse any fees or other expenses that the provider of the high_tag_cloud' title='definition'>online_platform paid or is to pay in relation to the dispute settlement, unless the out-of-court dispute settlement body finds that that recipient manifestly acted in bad faith.

The fees charged by the out-of-court dispute settlement body to the providers of high_tag_cloud' title='definition'>online_platforms for the dispute settlement shall be reasonable and shall in any event not exceed the costs incurred by the body. For recipients of the service, the dispute settlement shall be available free of charge or at a nominal fee.

Certified out-of-court dispute settlement bodies shall make the fees, or the mechanisms used to determine the fees, known to the high_tag_cloud' title='definition'>recipient_of_the_service, including to the individuals or entities that have submitted a notice, and to the provider of the high_tag_cloud' title='definition'>online_platform concerned, before engaging in the dispute settlement.

6.   Member States may establish out-of-court dispute settlement bodies for the purposes of paragraph 1 or support the activities of some or all out-of-court dispute settlement bodies that they have certified in accordance with paragraph 3.

Member States shall ensure that any of their activities undertaken under the first subparagraph do not affect the ability of their Digital Services Coordinators to certify the bodies concerned in accordance with paragraph 3.

7.   A Digital Services Coordinator that has certified an out-of-court dispute settlement body shall revoke that certification if it determines, following an investigation either on its own initiative or on the basis of the information received by third parties, that the out-of-court dispute settlement body no longer meets the conditions set out in paragraph 3. Before revoking that certification, the Digital Services Coordinator shall afford that body an opportunity to react to the findings of its investigation and its intention to revoke the out-of-court dispute settlement body’s certification.

8.   Digital Services Coordinators shall notify to the Commission the out-of-court dispute settlement bodies that they have certified in accordance with paragraph 3, including where applicable the specifications referred to in the second subparagraph of that paragraph, as well as the out-of-court dispute settlement bodies the certification of which they have revoked. The Commission shall publish a list of those bodies, including those specifications, on a dedicated website that is easily accessible, and keep it up to date.

9.   This Article is without prejudice to Directive 2013/11/EU and alternative dispute resolution procedures and entities for high_tag_cloud' title='definition'>consumers established under that Directive.

1.   Providers of high_tag_cloud' title='definition'>online_platforms accessible to minors shall put in place appropriate and proportionate measures to ensure a high level of privacy, safety, and security of minors, on their service.

2.   Providers of high_tag_cloud' title='definition'>online_platform shall not present high_tag_cloud' title='definition'>advertisements on their interface based on profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679 using personal data of the high_tag_cloud' title='definition'>recipient_of_the_service when they are aware with reasonable certainty that the high_tag_cloud' title='definition'>recipient_of_the_service is a minor.

3.   Compliance with the obligations set out in this Article shall not oblige providers of high_tag_cloud' title='definition'>online_platforms to process additional personal data in order to assess whether the high_tag_cloud' title='definition'>recipient_of_the_service is a minor.

4.   The Commission, after consulting the Board, may issue guidelines to assist providers of high_tag_cloud' title='definition'>online_platforms in the application of paragraph 1.

1.   This Section shall apply to high_tag_cloud' title='definition'>online_platforms and high_tag_cloud' title='definition'>online_search_engines which have a number of average monthly active recipients of the service in the Union equal to or higher than 45 million, and which are designated as very large high_tag_cloud' title='definition'>online_platforms or very large high_tag_cloud' title='definition'>online_search_engines pursuant to paragraph 4.

2.   The Commission shall adopt delegated acts in accordance with Article 87 to adjust the number of average monthly active recipients of the service in the Union referred to in paragraph 1, where the Union’s population increases or decreases at least by 5 % in relation to its population in 2020 or its population after adjustment by means of a delegated act in the year in which the latest delegated act was adopted. In such a case, it shall adjust the number so that it corresponds to 10 % of the Union’s population in the year in which it adopts the delegated act, rounded up or down to allow the number to be expressed in millions.

3.   The Commission may adopt delegated acts in accordance with Article 87, after consulting the Board, to supplement the provisions of this Regulation by laying down the methodology for calculating the number of average monthly active recipients of the service in the Union, for the purposes of paragraph 1 of this Article and Article 24(2), ensuring that the methodology takes account of market and technological developments.

4.   The Commission shall, after having consulted the Member State of establishment or after taking into account the information provided by the high_tag_cloud' title='definition'>Digital_Services_Coordinator_of_establishment pursuant to Article 24(4), adopt a decision designating as a very large high_tag_cloud' title='definition'>online_platform or a very large high_tag_cloud' title='definition'>online_search_engine for the purposes of this Regulation the high_tag_cloud' title='definition'>online_platform or the high_tag_cloud' title='definition'>online_search_engine which has a number of average monthly active recipients of the service equal to or higher than the number referred to in paragraph 1 of this Article. The Commission shall take its decision on the basis of data reported by the provider of the high_tag_cloud' title='definition'>online_platform or of the high_tag_cloud' title='definition'>online_search_engine pursuant to Article 24(2), or information requested pursuant to Article 24(3) or any other information available to the Commission.

The failure by the provider of the high_tag_cloud' title='definition'>online_platform or of the high_tag_cloud' title='definition'>online_search_engine to comply with Article 24(2) or to comply with the request by the high_tag_cloud' title='definition'>Digital_Services_Coordinator_of_establishment or by the Commission pursuant to Article 24(3) shall not prevent the Commission from designating that provider as a provider of a very large high_tag_cloud' title='definition'>online_platform or of a very large high_tag_cloud' title='definition'>online_search_engine pursuant to this paragraph.

Where the Commission bases its decision on other information available to the Commission pursuant to the first subparagraph of this paragraph or on the basis of additional information requested pursuant to Article 24(3), the Commission shall give the provider of the high_tag_cloud' title='definition'>online_platform or of the high_tag_cloud' title='definition'>online_search_engine concerned 10 working days in which to submit its views on the Commission’s preliminary findings and on its intention to designate the high_tag_cloud' title='definition'>online_platform or the high_tag_cloud' title='definition'>online_search_engine as a very large high_tag_cloud' title='definition'>online_platform or as a very large high_tag_cloud' title='definition'>online_search_engine, respectively. The Commission shall take due account of the views submitted by the provider concerned.

The failure of the provider of the high_tag_cloud' title='definition'>online_platform or of the high_tag_cloud' title='definition'>online_search_engine concerned to submit its views pursuant to the third subparagraph shall not prevent the Commission from designating that high_tag_cloud' title='definition'>online_platform or that high_tag_cloud' title='definition'>online_search_engine as a very large high_tag_cloud' title='definition'>online_platform or as a very large high_tag_cloud' title='definition'>online_search_engine, respectively, based on other information available to it.

5.   The Commission shall terminate the designation if, during an uninterrupted period of one year, the high_tag_cloud' title='definition'>online_platform or the high_tag_cloud' title='definition'>online_search_engine does not have a number of average monthly active recipients of the service equal to or higher than the number referred to in paragraph 1.

6.   The Commission shall notify its decisions pursuant to paragraphs 4 and 5, without undue delay, to the provider of the high_tag_cloud' title='definition'>online_platform or of the high_tag_cloud' title='definition'>online_search_engine concerned, to the Board and to the high_tag_cloud' title='definition'>Digital_Services_Coordinator_of_establishment.

The Commission shall ensure that the list of designated very large high_tag_cloud' title='definition'>online_platforms and very large high_tag_cloud' title='definition'>online_search_engines is published in the Official Journal of the European Union, and shall keep that list up to date. The obligations set out in this Section shall apply, or cease to apply, to the very large high_tag_cloud' title='definition'>online_platforms and very large high_tag_cloud' title='definition'>online_search_engines concerned from four months after the notification to the provider concerned referred to in the first subparagraph.

1.   Providers of very large high_tag_cloud' title='definition'>online_platforms and of very large high_tag_cloud' title='definition'>online_search_engines shall diligently identify, analyse and assess any systemic risks in the Union stemming from the design or functioning of their service and its related systems, including algorithmic systems, or from the use made of their services.

They shall carry out the risk assessments by the date of application referred to in Article 33(6), second subparagraph, and at least once every year thereafter, and in any event prior to deploying functionalities that are likely to have a critical impact on the risks identified pursuant to this Article. This risk assessment shall be specific to their services and proportionate to the systemic risks, taking into consideration their severity and probability, and shall include the following systemic risks:

(a)	the dissemination of high_tag_cloud' title='definition'>illegal_content through their services;

(b)

any actual or foreseeable negative effects for the exercise of fundamental rights, in particular the fundamental rights to human dignity enshrined in Article 1 of the Charter, to respect for private and family life enshrined in Article 7 of the Charter, to the protection of personal data enshrined in Article 8 of the Charter, to freedom of expression and information, including the freedom and pluralism of the media, enshrined in Article 11 of the Charter, to non-discrimination enshrined in Article 21 of the Charter, to respect for the rights of the child enshrined in Article 24 of the Charter and to a high-level of high_tag_cloud' title='definition'>consumer protection enshrined in Article 38 of the Charter;

(c)	any actual or foreseeable negative effects on civic discourse and electoral processes, and public security;

(d)	any actual or foreseeable negative effects in relation to gender-based violence, the protection of public health and minors and serious negative consequences to the person’s physical and mental well-being.

2.   When conducting risk assessments, providers of very large high_tag_cloud' title='definition'>online_platforms and of very large high_tag_cloud' title='definition'>online_search_engines shall take into account, in particular, whether and how the following factors influence any of the systemic risks referred to in paragraph 1:

(a)	the design of their high_tag_cloud' title='definition'>recommender_systems and any other relevant algorithmic system;

(b)	their high_tag_cloud' title='definition'>content_moderation systems;

(c)	the applicable high_tag_cloud' title='definition'>terms_and_conditions and their enforcement;

(d)	systems for selecting and presenting high_tag_cloud' title='definition'>advertisements;

(e)	data related practices of the provider.

The assessments shall also analyse whether and how the risks pursuant to paragraph 1 are influenced by intentional manipulation of their service, including by inauthentic use or automated exploitation of the service, as well as the amplification and potentially rapid and wide dissemination of high_tag_cloud' title='definition'>illegal_content and of information that is incompatible with their high_tag_cloud' title='definition'>terms_and_conditions.

The assessment shall take into account specific regional or linguistic aspects, including when specific to a Member State.

3.   Providers of very large high_tag_cloud' title='definition'>online_platforms and of very large high_tag_cloud' title='definition'>online_search_engines shall preserve the supporting documents of the risk assessments for at least three years after the performance of risk assessments, and shall, upon request, communicate them to the Commission and to the high_tag_cloud' title='definition'>Digital_Services_Coordinator_of_establishment.

1.   The Board shall be composed of Digital Services Coordinators who shall be represented by high-level officials. The failure by one or more Member States to designate a Digital Services Coordinator shall not prevent the Board from performing its tasks under this Regulation. Where provided for by national law, other competent authorities entrusted with specific operational responsibilities for the application and enforcement of this Regulation alongside the Digital Services Coordinator may participate in the Board. Other national authorities may be invited to the meetings, where the issues discussed are of relevance for them.

2.   The Board shall be chaired by the Commission. The Commission shall convene the meetings and prepare the agenda in accordance with the tasks of the Board pursuant to this Regulation and in line with its rules of procedure. When the Board is requested to adopt a recommendation pursuant to this Regulation, it shall immediately make the request available to other Digital Services Coordinators through the information sharing system set out in Article 85.

3.   Each Member State shall have one vote. The Commission shall not have voting rights.

The Board shall adopt its acts by simple majority. When adopting a recommendation to the Commission referred to in Article 36(1), first subparagraph, the Board shall vote within 48 hours after the request of the Chair of the Board.

4.   The Commission shall provide administrative and analytical support for the activities of the Board pursuant to this Regulation.

5.   The Board may invite experts and observers to attend its meetings, and may cooperate with other Union bodies, offices, agencies and advisory groups, as well as external experts as appropriate. The Board shall make the results of this cooperation publicly available.

6.   The Board may consult interested parties, and shall make the results of such consultation publicly available.

7.   The Board shall adopt its rules of procedure, following the consent of the Commission.