keyboard_tab Digital Service Act 2022/2065 EN
BG CS DA DE EL EN ES ET FI FR GA HR HU IT LV LT MT NL PL PT RO SK SL SV print pdf
- 1 Art. 3 Definitions
- 1 Art. 23 Measures and protection against misuse
- 2 Art. 51 Powers of Digital Services Coordinators
- 1 Art. 65 Enforcement of obligations of providers of very large online platforms and of very large online search engines
- 1 Art. 69 Power to conduct inspections
- 1 Art. 74 Fines
CHAPTER I
GENERAL PROVISIONS
CHAPTER II
LIABILITY OF PROVIDERS OF INTERMEDIARY SERVICES
CHAPTER III
DUE DILIGENCE OBLIGATIONS FOR A TRANSPARENT AND SAFE ONLINE ENVIRONMENT
SECTION 1
Provisions applicable to all providers of intermediary services
SECTION 2
Additional provisions applicable to providers of hosting services, including online platforms
SECTION 3
Additional provisions applicable to providers of online platforms
SECTION 4
Additional provisions applicable to providers of online platforms allowing consumers to conclude distance contracts with traders
SECTION 5
Additional obligations for providers of very large online platforms and of very large online search engines to manage systemic risks
SECTION 6
Other provisions concerning due diligence obligations
CHAPTER IV
IMPLEMENTATION, COOPERATION, PENALTIES AND ENFORCEMENT
SECTION 1
Competent authorities and national Digital Services Coordinators
SECTION 2
Competences, coordinated investigation and consistency mechanisms
SECTION 3
European Board for Digital Services
SECTION 4
Supervision, investigation, enforcement and monitoring in respect of providers of very large online platforms and of very large online search engines
SECTION 5
Common provisions on enforcement
SECTION 6
Delegated and implementing acts
CHAPTER V
FINAL PROVISIONS
- information society service
- recipient of the service
- consumer
- to offer services in the Union
- substantial connection to the Union
- trader
- intermediary service
- mere conduit
- caching
- hosting
- illegal content
- online platform
- online search engine
- dissemination to the public
- distance contract
- online interface
- Digital Services Coordinator of establishment
- Digital Services Coordinator of destination
- active recipient of an online platform
- active recipient of an online search engine
- advertisement
- recommender system
- content moderation
- terms and conditions
- persons with disabilities
- commercial communication
- turnover
- Mere conduit
- Caching
- information 40
- shall 40
- large 34
- very 34
- services 28
- provider 28
- request 27
- means 27
- commission 25
- digital 24
- concerned 23
- inspection 22
- infringement 21
- service 20
- online_platform 19
- pursuant 19
- coordinator 17
- which 17
- person 17
- member state 17
- online_search_engine 16
- referred 16
- judicial 15
- including 15
- persons 15
- measures 15
- powers 15
- authority 15
- decision 13
- intermediary_services 13
- providers 13
- in article 12
- regulation 12
- recipients 12
- paragraph 11
- national 11
- period 11
- provided 11
- such 10
- subject 10
- order 10
- recipient_of_the_service 10
- power 10
- have 10
- access 9
- within 9
- and 8
- comply 8
- purposes 8
- competent 8
Article 3
Definitions
For the purpose of this Regulation, the following definitions shall apply:
| (a) | ‘ information_society_service’ means a ‘service’ as defined in Article 1(1), point (b), of Directive (EU) 2015/1535; |
| (b) | ‘ recipient_of_the_service’ means any natural or legal person who uses an intermediary_service, in particular for the purposes of seeking information or making it accessible; |
| (c) | ‘ consumer’ means any natural person who is acting for purposes which are outside his or her trade, business, craft, or profession; |
| (d) | ‘ to_offer_services_in_the_Union’ means enabling natural or legal persons in one or more Member States to use the services of a provider of intermediary_services that has a substantial_connection_to_the_Union; |
| (e) | ‘ substantial_connection_to_the_Union’ means a connection of a provider of intermediary_services with the Union resulting either from its establishment in the Union or from specific factual criteria, such as:
|
| (f) | ‘ trader’ means any natural person, or any legal person irrespective of whether it is privately or publicly owned, who is acting, including through any person acting in his or her name or on his or her behalf, for purposes relating to his or her trade, business, craft or profession; |
| (g) | ‘ intermediary_service’ means one of the following information_society_services:
|
| (h) | ‘ illegal_content’ means any information that, in itself or in relation to an activity, including the sale of products or the provision of services, is not in compliance with Union law or the law of any Member State which is in compliance with Union law, irrespective of the precise subject matter or nature of that law; |
| (i) | ‘ online_platform’ means a hosting service that, at the request of a recipient_of_the_service, stores and disseminates information to the public, unless that activity is a minor and purely ancillary feature of another service or a minor functionality of the principal service and, for objective and technical reasons, cannot be used without that other service, and the integration of the feature or functionality into the other service is not a means to circumvent the applicability of this Regulation; |
| (j) | ‘ online_search_engine’ means an intermediary_service that allows users to input queries in order to perform searches of, in principle, all websites, or all websites in a particular language, on the basis of a query on any subject in the form of a keyword, voice request, phrase or other input, and returns results in any format in which information related to the requested content can be found; |
| (k) | ‘ dissemination_to_the_public’ means making information available, at the request of the recipient_of_the_service who provided the information, to a potentially unlimited number of third parties; |
| (l) | ‘ distance_contract’ means ‘ distance_contract’ as defined in Article 2, point (7), of Directive 2011/83/EU; |
| (m) | ‘ online_interface’ means any software, including a website or a part thereof, and applications, including mobile applications; |
| (n) | ‘ Digital_Services_Coordinator_of_establishment’ means the Digital Services Coordinator of the Member State where the main establishment of a provider of an intermediary_service is located or its legal representative resides or is established; |
| (o) | ‘ Digital_Services_Coordinator_of_destination’ means the Digital Services Coordinator of a Member State where the intermediary_service is provided; |
| (p) | ‘active recipient of an online_platform’ means a recipient_of_the_service that has engaged with an online_platform by either requesting the online_platform to host information or being exposed to information hosted by the online_platform and disseminated through its online_interface; |
| (q) | ‘active recipient of an online_search_engine’ means a recipient_of_the_service that has submitted a query to an online_search_engine and been exposed to information indexed and presented on its online_interface; |
| (r) | ‘ advertisement’ means information designed to promote the message of a legal or natural person, irrespective of whether to achieve commercial or non-commercial purposes, and presented by an online_platform on its online_interface against remuneration specifically for promoting that information; |
| (s) | ‘ recommender_system’ means a fully or partially automated system used by an online_platform to suggest in its online_interface specific information to recipients of the service or prioritise that information, including as a result of a search initiated by the recipient_of_the_service or otherwise determining the relative order or prominence of information displayed; |
| (t) | ‘ content_moderation’ means the activities, whether automated or not, undertaken by providers of intermediary_services, that are aimed, in particular, at detecting, identifying and addressing illegal_content or information incompatible with their terms_and_conditions, provided by recipients of the service, including measures taken that affect the availability, visibility, and accessibility of that illegal_content or that information, such as demotion, demonetisation, disabling of access to, or removal thereof, or that affect the ability of the recipients of the service to provide that information, such as the termination or suspension of a recipient’s account; |
| (u) | ‘ terms_and_conditions’ means all clauses, irrespective of their name or form, which govern the contractual relationship between the provider of intermediary_services and the recipients of the service; |
| (v) | ‘ persons_with_disabilities’ means ‘ persons_with_disabilities’ as referred to in Article 3, point (1), of Directive (EU) 2019/882 of the European Parliament and of the Council (38); |
| (w) | ‘ commercial_communication’ means ‘ commercial_communication’ as defined in Article 2, point (f), of Directive 2000/31/EC; |
| (x) | ‘ turnover’ means the amount derived by an undertaking within the meaning of Article 5(1) of Council Regulation (EC) No 139/2004 (39). |
CHAPTER II
LIABILITY OF PROVIDERS OF INTERMEDIARY SERVICES
Article 23
Measures and protection against misuse
1. Providers of online_platforms shall suspend, for a reasonable period of time and after having issued a prior warning, the provision of their services to recipients of the service that frequently provide manifestly illegal_content.
2. Providers of online_platforms shall suspend, for a reasonable period of time and after having issued a prior warning, the processing of notices and complaints submitted through the notice and action mechanisms and internal complaints-handling systems referred to in Articles 16 and 20, respectively, by individuals or entities or by complainants that frequently submit notices or complaints that are manifestly unfounded.
3. When deciding on suspension, providers of online_platforms shall assess, on a case-by-case basis and in a timely, diligent and objective manner, whether the recipient_of_the_service, the individual, the entity or the complainant engages in the misuse referred to in paragraphs 1 and 2, taking into account all relevant facts and circumstances apparent from the information available to the provider of online_platforms. Those circumstances shall include at least the following:
| (a) | the absolute numbers of items of manifestly illegal_content or manifestly unfounded notices or complaints, submitted within a given time frame; |
| (b) | the relative proportion thereof in relation to the total number of items of information provided or notices submitted within a given time frame; |
| (c) | the gravity of the misuses, including the nature of illegal_content, and of its consequences; |
| (d) | where it is possible to identify it, the intention of the recipient_of_the_service, the individual, the entity or the complainant. |
4. Providers of online_platforms shall set out, in a clear and detailed manner, in their terms_and_conditions their policy in respect of the misuse referred to in paragraphs 1 and 2, and shall give examples of the facts and circumstances that they take into account when assessing whether certain behaviour constitutes misuse and the duration of the suspension.
Article 51
Powers of Digital Services Coordinators
1. Where needed in order to carry out their tasks under this Regulation, Digital Services Coordinators shall have the following powers of investigation, in respect of conduct by providers of intermediary_services falling within the competence of their Member State:
| (a) | the power to require those providers, as well as any other persons acting for purposes related to their trade, business, craft or profession that may reasonably be aware of information relating to a suspected infringement of this Regulation, including organisations performing the audits referred to in Article 37 and Article 75(2), to provide such information without undue delay; |
| (b) | the power to carry out, or to request a judicial authority in their Member State to order, inspections of any premises that those providers or those persons use for purposes related to their trade, business, craft or profession, or to request other public authorities to do so, in order to examine, seize, take or obtain copies of information relating to a suspected infringement in any form, irrespective of the storage medium; |
| (c) | the power to ask any member of staff or representative of those providers or those persons to give explanations in respect of any information relating to a suspected infringement and to record the answers with their consent by any technical means. |
2. Where needed for carrying out their tasks under this Regulation, Digital Services Coordinators shall have the following enforcement powers, in respect of providers of intermediary_services falling within the competence of their Member State:
| (a) | the power to accept the commitments offered by those providers in relation to their compliance with this Regulation and to make those commitments binding; |
| (b) | the power to order the cessation of infringements and, where appropriate, to impose remedies proportionate to the infringement and necessary to bring the infringement effectively to an end, or to request a judicial authority in their Member State to do so; |
| (c) | the power to impose fines, or to request a judicial authority in their Member State to do so, in accordance with Article 52 for failure to comply with this Regulation, including with any of the investigative orders issued pursuant to paragraph 1 of this Article; |
| (d) | the power to impose a periodic penalty payment, or to request a judicial authority in their Member State to do so, in accordance with Article 52 to ensure that an infringement is terminated in compliance with an order issued pursuant to point (b) of this subparagraph or for failure to comply with any of the investigative orders issued pursuant to paragraph 1 of this Article; |
| (e) | the power to adopt interim measures or to request the competent national judicial authority in their Member State to do so, to avoid the risk of serious harm. |
As regards the first subparagraph, points (c) and (d), Digital Services Coordinators shall also have the enforcement powers set out in those points in respect of the other persons referred to in paragraph 1 for failure to comply with any of the orders issued to them pursuant to that paragraph. They shall only exercise those enforcement powers after providing those other persons in good time with all relevant information relating to such orders, including the applicable period, the fines or periodic payments that may be imposed for failure to comply and the possibilities for redress.
3. Where needed for carrying out their tasks under this Regulation, Digital Services Coordinators shall, in respect of providers of intermediary_services falling within the competence of their Member State, where all other powers pursuant to this Article to bring about the cessation of an infringement have been exhausted and the infringement has not been remedied or is continuing and is causing serious harm which cannot be avoided through the exercise of other powers available under Union or national law, also have the power to take the following measures:
| (a) | to require the management body of those providers, without undue delay, to examine the situation, adopt and submit an action plan setting out the necessary measures to terminate the infringement, ensure that the provider takes those measures, and report on the measures taken; |
| (b) | where the Digital Services Coordinator considers that a provider of intermediary_services has not sufficiently complied with the requirements referred to in point (a), that the infringement has not been remedied or is continuing and is causing serious harm, and that that infringement entails a criminal offence involving a threat to the life or safety of persons, to request that the competent judicial authority of its Member State order the temporary restriction of access of recipients to the service concerned by the infringement or, only where that is not technically feasible, to the online_interface of the provider of intermediary_services on which the infringement takes place. |
The Digital Services Coordinator shall, except where it acts upon the Commission’s request referred to in Article 82, prior to submitting the request referred to in the first subparagraph, point (b), of this paragraph invite interested parties to submit written observations within a period that shall not be less than two weeks, describing the measures that it intends to request and identifying the intended addressee or addressees thereof. The provider of intermediary_services, the intended addressee or addressees and any other third party demonstrating a legitimate interest shall be entitled to participate in the proceedings before the competent judicial authority. Any measure ordered shall be proportionate to the nature, gravity, recurrence and duration of the infringement, without unduly restricting access to lawful information by recipients of the service concerned.
The restriction of access shall be for a period of four weeks, subject to the possibility for the competent judicial authority, in its order, to allow the Digital Services Coordinator to extend that period for further periods of the same lengths, subject to a maximum number of extensions set by that judicial authority. The Digital Services Coordinator shall only extend the period where, having regard to the rights and interests of all parties affected by that restriction and all relevant circumstances, including any information that the provider of intermediary_services, the addressee or addressees and any other third party that demonstrated a legitimate interest may provide to it, it considers that both of the following conditions have been met:
| (a) | the provider of intermediary_services has failed to take the necessary measures to terminate the infringement; |
| (b) | the temporary restriction does not unduly restrict access to lawful information by recipients of the service, having regard to the number of recipients affected and whether any adequate and readily accessible alternatives exist. |
Where the Digital Services Coordinator considers that the conditions set out in the third subparagraph, points (a) and (b), have been met but it cannot further extend the period pursuant to the third subparagraph, it shall submit a new request to the competent judicial authority, as referred to in the first subparagraph, point (b).
4. The powers listed in paragraphs 1, 2 and 3 shall be without prejudice to Section 3.
5. The measures taken by the Digital Services Coordinators in the exercise of their powers listed in paragraphs 1, 2 and 3 shall be effective, dissuasive and proportionate, having regard, in particular, to the nature, gravity, recurrence and duration of the infringement or suspected infringement to which those measures relate, as well as the economic, technical and operational capacity of the provider of the intermediary_services concerned where relevant.
6. Member States shall lay down specific rules and procedures for the exercise of the powers pursuant to paragraphs 1, 2 and 3 and shall ensure that any exercise of those powers is subject to adequate safeguards laid down in the applicable national law in compliance with the Charter and with the general principles of Union law. In particular, those measures shall only be taken in accordance with the right to respect for private life and the rights of defence, including the rights to be heard and of access to the file, and subject to the right to an effective judicial remedy of all affected parties.
Article 65
Enforcement of obligations of providers of very large online_platforms and of very large online_search_engines
1. For the purposes of investigating compliance of providers of very large online_platforms and of very large online_search_engines with the obligations laid down in this Regulation, the Commission may exercise the investigatory powers laid down in this Section even before initiating proceedings pursuant to Article 66(2). It may exercise those powers on its own initiative or following a request pursuant to paragraph 2 of this Article.
2. Where a Digital Services Coordinator has reason to suspect that a provider of a very large online_platform or of a very large online_search_engine has infringed the provisions of Section 5 of Chapter III or has systemically infringed any of the provisions of this Regulation in a manner that seriously affects recipients of the service in its Member State, it may send, through the information sharing system referred to in Article 85, a request to the Commission to assess the matter.
3. A request pursuant to paragraph 2 shall be duly reasoned and at least indicate:
| (a) | the point of contact of the provider of the very large online_platform or of the very large online_search_engine concerned as provided for in Article 11; |
| (b) | a description of the relevant facts, the provisions of this Regulation concerned and the reasons why the Digital Services Coordinator that sent the request suspects that the provider of the very large online_platforms or of the very large online_search_engine concerned infringed this Regulation, including a description of the facts that show that the suspected infringement is of a systemic nature; |
| (c) | any other information that the Digital Services Coordinator that sent the request considers relevant, including, where appropriate, information gathered on its own initiative. |
Article 69
Power to conduct inspections
1. In order to carry out the tasks assigned to it under this Section, the Commission may conduct all necessary inspections at the premises of the provider of the very large online_platform or of the very large online_search_engine concerned or of another person referred to in Article 67(1).
2. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall be empowered to:
| (a) | enter any premises, land and means of transport of the provider of the very large online_platform or of the very large online_search_engine concerned or of the other person concerned; |
| (b) | examine the books and other records related to the provision of the service concerned, irrespective of the medium on which they are stored; |
| (c) | take or obtain in any form copies of or extracts from such books or other records; |
| (d) | require the provider of the very large online_platform or of the very large online_search_engine or the other person concerned to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business practices and to record or document the explanations given; |
| (e) | seal any premises used for purposes related to the trade, business, craft or profession of the provider of the very large online_platform or of the very large online_search_engine or of the other person concerned, as well as books or other records, for the period and to the extent necessary for the inspection; |
| (f) | ask any representative or member of staff of the provider of the very large online_platform or of the very large online_search_engine or the other person concerned for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers; |
| (g) | address questions to any such representative or member of staff relating to the subject-matter and purpose of the inspection and to record the answers. |
3. Inspections may be carried out with the assistance of auditors or experts appointed by the Commission pursuant to Article 72(2), and of Digital Services Coordinator or other competent national authorities of the Member State in the territory of which the inspection is conducted.
4. Where the production of required books or other records related to the provision of the service concerned is incomplete or where the answers to questions asked under paragraph 2 of this Article are incorrect, incomplete or misleading, the officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the penalties provided for in Articles 74 and 76. In good time before the inspection, the Commission shall inform the Digital Services Coordinator of the Member State in the territory in which the inspection is to be conducted thereof.
5. During inspections, the officials and other accompanying persons authorised by the Commission, the auditors and experts appointed by the Commission, the Digital Services Coordinator or the other competent authorities of the Member State in the territory of which the inspection is conducted may require the provider of the very large online_platform or of the very large online_search_engine or other person concerned to provide explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts, and may address questions to its key personnel.
6. The provider of the very large online_platform or of the very large online_search_engine or other natural or legal person concerned shall be required to submit to an inspection ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the penalties provided for in Articles 74 and 76 and the right to have the decision reviewed by the Court of Justice of the European Union. The Commission shall consult the Digital Services Coordinator of the Member State on territory of which the inspection is to be conducted prior to taking that decision.
7. Officials of, and other persons authorised or appointed by, the Digital Services Coordinator of the Member State on the territory of which the inspection is to be conducted shall, at the request of that Digital Services Coordinator or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission in relation to the inspection. To this end, they shall have the powers listed in paragraph 2.
8. Where the officials and other accompanying persons authorised by the Commission find that the provider of the very large online_platform or of the very large online_search_engine or the other person concerned opposes an inspection ordered pursuant to this Article, the Member State in the territory of which the inspection is to be conducted shall, at the request of those officials or other accompanying persons and in accordance with the national law of the Member State, afford them necessary assistance, including, where appropriate under that national law, in the form of coercive measures taken by a competent law enforcement authority, so as to enable them to conduct the inspection.
9. If the assistance provided for in paragraph 8 requires authorisation from a national judicial authority in accordance with the national law of the Member State concerned, such authorisation shall be applied for by the Digital Services Coordinator of that Member State at the request of the officials and other accompanying persons authorised by the Commission. Such authorisation may also be applied for as a precautionary measure.
10. Where the authorisation referred to in paragraph 9 is applied for, the national judicial authority before which a case has been brought shall verify that the Commission decision ordering the inspection is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. When conducting such verification, the national judicial authority may ask the Commission, directly or through the Digital Services Coordinators of the Member State concerned, for detailed explanations, in particular those concerning the grounds on which the Commission suspects an infringement of this Regulation, concerning the seriousness of the suspected infringement and concerning the nature of the involvement of the provider of the very large online_platform or of the very large online_search_engine or of the other person concerned. However, the national judicial authority shall not call into question the necessity for the inspection nor demand information from the case file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice of the European Union.
Article 74
Fines
1. In the decision referred to in Article 73, the Commission may impose on the provider of the very large online_platform or of the very large online_search_engine concerned fines not exceeding 6 % of its total worldwide annual turnover in the preceding financial year where it finds that the provider, intentionally or negligently:
| (a) | infringes the relevant provisions of this Regulation; |
| (b) | fails to comply with a decision ordering interim measures under Article 70; or |
| (c) | fails to comply with a commitment made binding by a decision pursuant to Article 71. |
2. The Commission may adopt a decision imposing on the provider of the very large online_platform or of the very large online_search_engine concerned or on another natural or legal person referred to in Article 67(1) fines not exceeding 1 % of the total annual income or worldwide turnover in the preceding financial year, where they intentionally or negligently:
| (a) | supply incorrect, incomplete or misleading information in response to a simple request or request by a decision pursuant to Article 67; |
| (b) | fail to reply to the request for information by decision within the set period; |
| (c) | fail to rectify within the period set by the Commission, incorrect, incomplete or misleading information given by a member of staff, or fail or refuse to provide complete information; |
| (d) | refuse to submit to an inspection pursuant to Article 69; |
| (e) | fail to comply with the measures adopted by the Commission pursuant to Article 72; or |
| (f) | fail to comply with the conditions for access to the Commission’s file pursuant to Article 79(4). |
3. Before adopting the decision pursuant to paragraph 2 of this Article, the Commission shall communicate its preliminary findings to the provider of the very large online_platform or of the very large online_search_engine concerned or to another person referred to in Article 67(1).
4. In fixing the amount of the fine, the Commission shall have regard to the nature, gravity, duration and recurrence of the infringement and, for fines imposed pursuant to paragraph 2, the delay caused to the proceedings.
whereas