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. 35 Mitigation of risks
- 1 Art. 37 Independent audit
- 1 Art. 41 Compliance function
- 13 Art. 48 Crisis protocols
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
- large 60
- very 60
- shall 39
- audit 25
- crisis 23
- provider 23
- compliance 21
- measures 18
- online_platform 17
- online_search_engine 17
- management 16
- online_platforms 15
- online_search_engines 15
- pursuant 15
- commission 12
- referred 12
- the 11
- risks 11
- body 10
- have 10
- audits 10
- function 10
- report 10
- protocols 10
- specific 10
- particular 9
- including 9
- ensure 8
- they 8
- to article 8
- information 8
- identified 8
- necessary 8
- from 7
- providers 7
- and 7
- which 7
- adapting 7
- providers 7
- appropriate 6
- implementation 6
- address 6
- cooperation 6
- relevant 6
- protocol 6
- organisations 6
- in article 6
- services 6
- independent 6
- systemic 6
Article 35
Mitigation of risks
1. Providers of very large online_platforms and of very large online_search_engines shall put in place reasonable, proportionate and effective mitigation measures, tailored to the specific systemic risks identified pursuant to Article 34, with particular consideration to the impacts of such measures on fundamental rights. Such measures may include, where applicable:
| (a) | adapting the design, features or functioning of their services, including their online_interfaces; |
| (b) | adapting their terms_and_conditions and their enforcement; |
| (c) | adapting content_moderation processes, including the speed and quality of processing notices related to specific types of illegal_content and, where appropriate, the expeditious removal of, or the disabling of access to, the content notified, in particular in respect of illegal hate speech or cyber violence, as well as adapting any relevant decision-making processes and dedicated resources for content_moderation; |
| (d) | testing and adapting their algorithmic systems, including their recommender_systems; |
| (e) | adapting their advertising systems and adopting targeted measures aimed at limiting or adjusting the presentation of advertisements in association with the service they provide; |
| (f) | reinforcing the internal processes, resources, testing, documentation, or supervision of any of their activities in particular as regards detection of systemic risk; |
| (g) | initiating or adjusting cooperation with trusted flaggers in accordance with Article 22 and the implementation of the decisions of out-of-court dispute settlement bodies pursuant to Article 21; |
| (h) | initiating or adjusting cooperation with other providers of online_platforms or of online_search_engines through the codes of conduct and the crisis protocols referred to in Articles 45 and 48 respectively; |
| (i) | taking awareness-raising measures and adapting their online_interface in order to give recipients of the service more information; |
| (j) | taking targeted measures to protect the rights of the child, including age verification and parental control tools, tools aimed at helping minors signal abuse or obtain support, as appropriate; |
| (k) | ensuring that an item of information, whether it constitutes a generated or manipulated image, audio or video that appreciably resembles existing persons, objects, places or other entities or events and falsely appears to a person to be authentic or truthful is distinguishable through prominent markings when presented on their online_interfaces, and, in addition, providing an easy to use functionality which enables recipients of the service to indicate such information. |
2. The Board, in cooperation with the Commission, shall publish comprehensive reports, once a year. The reports shall include the following:
| (a) | identification and assessment of the most prominent and recurrent systemic risks reported by providers of very large online_platforms and of very large online_search_engines or identified through other information sources, in particular those provided in compliance with Articles 39, 40 and 42; |
| (b) | best practices for providers of very large online_platforms and of very large online_search_engines to mitigate the systemic risks identified. |
Those reports shall present systemic risks broken down by the Member States in which they occurred and in the Union as a whole, as applicable.
3. The Commission, in cooperation with the Digital Services Coordinators, may issue guidelines on the application of paragraph 1 in relation to specific risks, in particular to present best practices and recommend possible measures, having due regard to the possible consequences of the measures on fundamental rights enshrined in the Charter of all parties involved. When preparing those guidelines the Commission shall organise public consultations.
Article 37
Independent audit
1. Providers of very large online_platforms and of very large online_search_engines shall be subject, at their own expense and at least once a year, to independent audits to assess compliance with the following:
| (a) | the obligations set out in Chapter III; |
| (b) | any commitments undertaken pursuant to the codes of conduct referred to in Articles 45 and 46 and the crisis protocols referred to in Article 48. |
2. Providers of very large online_platforms and of very large online_search_engines shall afford the organisations carrying out the audits pursuant to this Article the cooperation and assistance necessary to enable them to conduct those audits in an effective, efficient and timely manner, including by giving them access to all relevant data and premises and by answering oral or written questions. They shall refrain from hampering, unduly influencing or undermining the performance of the audit.
Such audits shall ensure an adequate level of confidentiality and professional secrecy in respect of the information obtained from the providers of very large online_platforms and of very large online_search_engines and third parties in the context of the audits, including after the termination of the audits. However, complying with that requirement shall not adversely affect the performance of the audits and other provisions of this Regulation, in particular those on transparency, supervision and enforcement. Where necessary for the purpose of the transparency reporting pursuant to Article 42(4), the audit report and the audit implementation report referred to in paragraphs 4 and 6 of this Article shall be accompanied with versions that do not contain any information that could reasonably be considered to be confidential.
3. Audits performed pursuant to paragraph 1 shall be performed by organisations which:
| (a) | are independent from, and do not have any conflicts of interest with, the provider of very large online_platforms or of very large online_search_engines concerned and any legal person connected to that provider; in particular:
|
| (b) | have proven expertise in the area of risk management, technical competence and capabilities; |
| (c) | have proven objectivity and professional ethics, based in particular on adherence to codes of practice or appropriate standards. |
4. Providers of very large online_platforms and of very large online_search_engines shall ensure that the organisations that perform the audits establish an audit report for each audit. That report shall be substantiated, in writing, and shall include at least the following:
| (a) | the name, address and the point of contact of the provider of the very large online_platform or of the very large online_search_engine subject to the audit and the period covered; |
| (b) | the name and address of the organisation or organisations performing the audit; |
| (c) | a declaration of interests; |
| (d) | a description of the specific elements audited, and the methodology applied; |
| (e) | a description and a summary of the main findings drawn from the audit; |
| (f) | a list of the third parties consulted as part of the audit; |
| (g) | an audit opinion on whether the provider of the very large online_platform or of the very large online_search_engine subject to the audit complied with the obligations and with the commitments referred to in paragraph 1, namely ‘positive’, ‘positive with comments’ or ‘negative’; |
| (h) | where the audit opinion is not ‘positive’, operational recommendations on specific measures to achieve compliance and the recommended timeframe to achieve compliance. |
5. Where the organisation performing the audit was unable to audit certain specific elements or to express an audit opinion based on its investigations, the audit report shall include an explanation of the circumstances and the reasons why those elements could not be audited.
6. Providers of very large online_platforms or of very large online_search_engines receiving an audit report that is not ‘positive’ shall take due account of the operational recommendations addressed to them with a view to take the necessary measures to implement them. They shall, within one month from receiving those recommendations, adopt an audit implementation report setting out those measures. Where they do not implement the operational recommendations, they shall justify in the audit implementation report the reasons for not doing so and set out any alternative measures that they have taken to address any instances of non-compliance identified.
7. The Commission is empowered to adopt delegated acts in accordance with Article 87 to supplement this Regulation by laying down the necessary rules for the performance of the audits pursuant to this Article, in particular as regards the necessary rules on the procedural steps, auditing methodologies and reporting templates for the audits performed pursuant to this Article. Those delegated acts shall take into account any voluntary auditing standards referred to in Article 44(1), point (e).
Article 41
Compliance function
1. Providers of very large online_platforms or of very large online_search_engines shall establish a compliance function, which is independent from their operational functions and composed of one or more compliance officers, including the head of the compliance function. That compliance function shall have sufficient authority, stature and resources, as well as access to the management body of the provider of the very large online_platform or of the very large online_search_engine to monitor the compliance of that provider with this Regulation.
2. The management body of the provider of the very large online_platform or of the very large online_search_engine shall ensure that compliance officers have the professional qualifications, knowledge, experience and ability necessary to fulfil the tasks referred to in paragraph 3.
The management body of the provider of the very large online_platform or of the very large online_search_engine shall ensure that the head of the compliance function is an independent senior manager with distinct responsibility for the compliance function.
The head of the compliance function shall report directly to the management body of the provider of the very large online_platform or of the very large online_search_engine, and may raise concerns and warn that body where risks referred to in Article 34 or non-compliance with this Regulation affect or may affect the provider of the very large online_platform or of the very large online_search_engine concerned, without prejudice to the responsibilities of the management body in its supervisory and managerial functions.
The head of the compliance function shall not be removed without prior approval of the management body of the provider of the very large online_platform or of the very large online_search_engine.
3. Compliance officers shall have the following tasks:
| (a) | cooperating with the Digital_Services_Coordinator_of_establishment and the Commission for the purpose of this Regulation; |
| (b) | ensuring that all risks referred to in Article 34 are identified and properly reported on and that reasonable, proportionate and effective risk-mitigation measures are taken pursuant to Article 35; |
| (c) | organising and supervising the activities of the provider of the very large online_platform or of the very large online_search_engine relating to the independent audit pursuant to Article 37; |
| (d) | informing and advising the management and employees of the provider of the very large online_platform or of the very large online_search_engine about relevant obligations under this Regulation; |
| (e) | monitoring the compliance of the provider of the very large online_platform or of the very large online_search_engine with its obligations under this Regulation; |
| (f) | where applicable, monitoring the compliance of the provider of the very large online_platform or of the very large online_search_engine with commitments made under the codes of conduct pursuant to Articles 45 and 46 or the crisis protocols pursuant to Article 48. |
4. Providers of very large online_platforms or of very large online_search_engines shall communicate the name and contact details of the head of the compliance function to the Digital_Services_Coordinator_of_establishment and to the Commission.
5. The management body of the provider of the very large online_platform or of the very large online_search_engine shall define, oversee and be accountable for the implementation of the provider's governance arrangements that ensure the independence of the compliance function, including the division of responsibilities within the organisation of the provider of very large online_platform or of very large online_search_engine, the prevention of conflicts of interest, and sound management of systemic risks identified pursuant to Article 34.
6. The management body shall approve and review periodically, at least once a year, the strategies and policies for taking up, managing, monitoring and mitigating the risks identified pursuant to Article 34 to which the very large online_platform or the very large online_search_engine is or might be exposed to.
7. The management body shall devote sufficient time to the consideration of the measures related to risk management. It shall be actively involved in the decisions related to risk management, and shall ensure that adequate resources are allocated to the management of the risks identified in accordance with Article 34.
Article 48
Crisis protocols
1. The Board may recommend that the Commission initiate the drawing up, in accordance with paragraphs 2, 3 and 4, of voluntary crisis protocols for addressing crisis situations. Those situations shall be strictly limited to extraordinary circumstances affecting public security or public health.
2. The Commission shall encourage and facilitate the providers of very large online_platforms, of very large online_search_engines and, where appropriate, the providers of other online_platforms or of other online_search_engines, to participate in the drawing up, testing and application of those crisis protocols. The Commission shall aim to ensure that those crisis protocols include one or more of the following measures:
| (a) | prominently displaying information on the crisis situation provided by Member States’ authorities or at Union level, or, depending on the context of the crisis, by other relevant reliable bodies; |
| (b) | ensuring that the provider of intermediary_services designates a specific point of contact for crisis management; where relevant, this may be the electronic point of contact referred to in Article 11 or, in the case of providers of very large online_platforms or of very large online_search_engines, the compliance officer referred to in Article 41; |
| (c) | where applicable, adapt the resources dedicated to compliance with the obligations set out in Articles 16, 20, 22, 23 and 35 to the needs arising from the crisis situation. |
3. The Commission shall, as appropriate, involve Member States’ authorities, and may also involve Union bodies, offices and agencies in drawing up, testing and supervising the application of the crisis protocols. The Commission may, where necessary and appropriate, also involve civil society organisations or other relevant organisations in drawing up the crisis protocols.
4. The Commission shall aim to ensure that the crisis protocols set out clearly all of the following:
| (a) | the specific parameters to determine what constitutes the specific extraordinary circumstance the crisis protocol seeks to address and the objectives it pursues; |
| (b) | the role of each participant and the measures they are to put in place in preparation and once the crisis protocol has been activated; |
| (c) | a clear procedure for determining when the crisis protocol is to be activated; |
| (d) | a clear procedure for determining the period during which the measures to be taken once the crisis protocol has been activated are to be taken, which is strictly limited to what is necessary for addressing the specific extraordinary circumstances concerned; |
| (e) | safeguards to address any negative effects on the exercise of the fundamental rights enshrined in the Charter, in particular the freedom of expression and information and the right to non-discrimination; |
| (f) | a process to publicly report on any measures taken, their duration and their outcomes, upon the termination of the crisis situation. |
5. If the Commission considers that a crisis protocol fails to effectively address the crisis situation, or to safeguard the exercise of fundamental rights as referred to in paragraph 4, point (e), it shall request the participants to revise the crisis protocol, including by taking additional measures.
CHAPTER IV
IMPLEMENTATION, COOPERATION, PENALTIES AND ENFORCEMENT
SECTION 1
Competent authorities and national Digital Services Coordinators
whereas