Digital Service Act 2022/2065 EN

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

whereas recipient of the service:

definitions:

cloud tag:

and the number of total unique words without stopwords is: 902

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:

—	a significant number of recipients of the service in one or more Member States in relation to its or their population; or

—	the targeting of activities towards one or more Member States;

(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:

(i)	a ‘ mere_conduit’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network;

(ii)

a ‘ caching’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients upon their request;

(iii)

a ‘ hosting’ service, consisting of the storage of information provided by, and at the request of, a recipient of the service;

(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 4

‘ Mere_conduit’

1. Where an information_society_service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, the service provider shall not be liable for the information transmitted or accessed, on condition that the provider:

(a)	does not initiate the transmission;

(b)	does not select the receiver of the transmission; and

(c)	does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 shall include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

3. This Article shall not affect the possibility for a judicial or administrative authority, in accordance with a Member State’s legal system, to require the service provider to terminate or prevent an infringement.

Article 5

‘ Caching’

1. Where an information_society_service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient or more secure the information's onward transmission to other recipients of the service upon their request, on condition that the provider:

(a)	does not modify the information;

(b)	complies with conditions on access to the information;

(c)	complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d)	does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(e)

acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a judicial or an administrative authority has ordered such removal or disablement.

2. This Article shall not affect the possibility for a judicial or administrative authority, in accordance with a Member State’s legal system, to require the service provider to terminate or prevent an infringement.

Article 6

Hosting

1. Where an information_society_service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that the provider:

(a)	does not have actual knowledge of illegal activity or illegal_content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal_content is apparent; or

(b)	upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the illegal_content.

2. Paragraph 1 shall not apply where the recipient of the service is acting under the authority or the control of the provider.

3. Paragraph 1 shall not apply with respect to the liability under consumer protection law of online_platforms that allow consumers to conclude distance_contracts with traders, where such an online_platform presents the specific item of information or otherwise enables the specific transaction at issue in a way that would lead an average consumer to believe that the information, or the product or service that is the object of the transaction, is provided either by the online_platform itself or by a recipient of the service who is acting under its authority or control.

4. This Article shall not affect the possibility for a judicial or administrative authority, in accordance with a Member State's legal system, to require the service provider to terminate or prevent an infringement.

Article 9

Orders to act against illegal_content

1. Upon the receipt of an order to act against one or more specific items of illegal_content, issued by the relevant national judicial or administrative authorities, on the basis of the applicable Union law or national law in compliance with Union law, providers of intermediary_services shall inform the authority issuing the order, or any other authority specified in the order, of any effect given to the order without undue delay, specifying if and when effect was given to the order.

2. Member States shall ensure that when an order referred to in paragraph 1 is transmitted to the provider, it meets at least the following conditions:

(a)

that order contains the following elements:

(i)	a reference to the legal basis under Union or national law for the order;

(ii)	a statement of reasons explaining why the information is illegal_content, by reference to one or more specific provisions of Union law or national law in compliance with Union law;

(iii)

information identifying the issuing authority;

(iv)	clear information enabling the provider of intermediary_services to identify and locate the illegal_content concerned, such as one or more exact URL and, where necessary, additional information;

(v)	information about redress mechanisms available to the provider of intermediary_services and to the recipient of the service who provided the content;

(vi)	where applicable, information about which authority is to receive the information about the effect given to the orders;

(b)	the territorial scope of that order, on the basis of the applicable rules of Union and national law, including the Charter, and, where relevant, general principles of international law, is limited to what is strictly necessary to achieve its objective;

(c)

that order is transmitted in one of the languages declared by the provider of intermediary_services pursuant to Article 11(3) or in another official language of the Member States, agreed between the authority issuing the order and that provider, and is sent to the electronic point of contact designated by that provider, in accordance with Article 11; where the order is not drafted in the language declared by the provider of intermediary_services or in another bilaterally agreed language, the order may be transmitted in the language of the authority issuing the order, provided that it is accompanied by a translation into such declared or bilaterally agreed language of at least the elements set out in points (a) and (b) of this paragraph.

3. The authority issuing the order or, where applicable, the authority specified therein, shall transmit it, along with any information received from the provider of intermediary_services concerning the effect given to that order to the Digital Services Coordinator from the Member State of the issuing authority.

4. After receiving the order from the judicial or administrative authority, the Digital Services Coordinator of the Member State concerned shall, without undue delay, transmit a copy of the order referred to in paragraph 1 of this Article to all other Digital Services Coordinators through the system established in accordance with Article 85.

5. At the latest when effect is given to the order or, where applicable, at the time provided by the issuing authority in its order, providers of intermediary_services shall inform the recipient of the service concerned of the order received and to the effect given to it. Such information provided to the recipient of the service shall include a statement of reasons, the possibilities for redress that exist, and a description of the territorial scope of the order, in accordance with paragraph 2.

6. The conditions and requirements laid down in this Article shall be without prejudice to national civil and criminal procedural law.

Article 10

Orders to provide information

1. Upon receipt of an order to provide specific information about one or more specific individual recipients of the service, issued by the relevant national judicial or administrative authorities on the basis of the applicable Union law or national law in compliance with Union law, providers of intermediary_services shall, without undue delay inform the authority issuing the order, or any other authority specified in the order, of its receipt and of the effect given to the order, specifying if and when effect was given to the order.

2. Member States shall ensure that when an order referred to in paragraph 1 is transmitted to the provider, it meets at least the following conditions:

(a)

that order contains the following elements:

(i)	a reference to the legal basis under Union or national law for the order;

(ii)	information identifying the issuing authority;

(iii)

clear information enabling the provider of intermediary_services to identify the specific recipient or recipients on whom information is sought, such as one or more account names or unique identifiers;

(iv)

a statement of reasons explaining the objective for which the information is required and why the requirement to provide the information is necessary and proportionate to determine compliance by the recipients of the intermediary_services with applicable Union law or national law in compliance with Union law, unless such a statement cannot be provided for reasons related to the prevention, investigation, detection and prosecution of criminal offences;

(v)	information about redress mechanisms available to the provider and to the recipients of the service concerned;

(vi)	where applicable, information about which authority is to receive the information about the effect given to the orders;

(b)	that order only requires the provider to provide information already collected for the purposes of providing the service and which lies within its control;

(c)

that order is transmitted in one of the languages declared by the provider of intermediary_services pursuant to Article 11(3) or in another official language of the Member States, agreed between the authority issuing the order and the provider, and is sent to the electronic point of contact designated by that provider, in accordance with Article 11; where the order is not drafted in the language declared by the provider of intermediary_services or in another bilaterally agreed language, the order may be transmitted in the language of the authority issuing the order, provided that it is accompanied by a translation into such declared or bilaterally agreed language of at least the elements set out in points (a) and (b) of this paragraph.

4. After receiving the order from the judicial or administrative authority, the Digital Services Coordinator of the Member State concerned shall, without undue delay, transmit a copy of the order referred to in paragraph 1 of this Article to all Digital Services Coordinators through the system established in accordance with Article 85.

5. At the latest when effect is given to the order, or, where applicable, at the time provided by the issuing authority in its order, providers of intermediary_services shall inform the recipient of the service concerned of the order received and the effect given to it. Such information provided to the recipient of the service shall include a statement of reasons and the possibilities for redress that exist, in accordance with paragraph 2.

6. The conditions and requirements laid down in this Article shall be without prejudice to national civil and criminal procedural law.

CHAPTER III

DUE DILIGENCE OBLIGATIONS FOR A TRANSPARENT AND SAFE ONLINE ENVIRONMENT

SECTION 1

Provisions applicable to all providers of intermediary_services

Article 17

Statement of reasons

1. Providers of hosting services shall provide a clear and specific statement of reasons to any affected recipients of the service for any of the following restrictions imposed on the ground that the information provided by the recipient of the service is illegal_content or incompatible with their terms_and_conditions:

(a)	any restrictions of the visibility of specific items of information provided by the recipient of the service, including removal of content, disabling access to content, or demoting content;

(b)	suspension, termination or other restriction of monetary payments;

(c)	suspension or termination of the provision of the service in whole or in part;

(d)	suspension or termination of the recipient of the service's account.

2. Paragraph 1 shall only apply where the relevant electronic contact details are known to the provider. It shall apply at the latest from the date that the restriction is imposed, regardless of why or how it was imposed.

Paragraph 1 shall not apply where the information is deceptive high-volume commercial content.

3. The statement of reasons referred to in paragraph 1 shall at least contain the following information:

(a)

information on whether the decision entails either the removal of, the disabling of access to, the demotion of or the restriction of the visibility of the information, or the suspension or termination of monetary payments related to that information, or imposes other measures referred to in paragraph 1 with regard to the information, and, where relevant, the territorial scope of the decision and its duration;

(b)

the facts and circumstances relied on in taking the decision, including, where relevant, information on whether the decision was taken pursuant to a notice submitted in accordance with Article 16 or based on voluntary own-initiative investigations and, where strictly necessary, the identity of the notifier;

(c)	where applicable, information on the use made of automated means in taking the decision, including information on whether the decision was taken in respect of content detected or identified using automated means;

(d)	where the decision concerns allegedly illegal_content, a reference to the legal ground relied on and explanations as to why the information is considered to be illegal_content on that ground;

(e)	where the decision is based on the alleged incompatibility of the information with the terms_and_conditions of the provider of hosting services, a reference to the contractual ground relied on and explanations as to why the information is considered to be incompatible with that ground;

(f)	clear and user-friendly information on the possibilities for redress available to the recipient of the service in respect of the decision, in particular, where applicable through internal complaint-handling mechanisms, out-of-court dispute settlement and judicial redress.

4. The information provided by the providers of hosting services in accordance with this Article shall be clear and easily comprehensible and as precise and specific as reasonably possible under the given circumstances. The information shall, in particular, be such as to reasonably allow the recipient of the service concerned to effectively exercise the possibilities for redress referred to in of paragraph 3, point (f).

5. This Article shall not apply to any orders referred to in Article 9.

Article 20

Internal complaint-handling system

1. Providers of online_platforms shall provide recipients of the service, including individuals or entities that have submitted a notice, for a period of at least six months following the decision referred to in this paragraph, with access to an effective internal complaint-handling system that enables them to lodge complaints, electronically and free of charge, against the decision taken by the provider of the online_platform upon the receipt of a notice or against the following decisions taken by the provider of the online_platform on the grounds that the information provided by the recipients constitutes illegal_content or is incompatible with its terms_and_conditions:

(a)	decisions whether or not to remove or disable access to or restrict visibility of the information;

(b)	decisions whether or not to suspend or terminate the provision of the service, in whole or in part, to the recipients;

(c)	decisions whether or not to suspend or terminate the recipients’ account;

(d)	decisions whether or not to suspend, terminate or otherwise restrict the ability to monetise information provided by the recipients.

2. The period of at least six months referred to in paragraph 1 of this Article shall start on the day on which the recipient of the service is informed about the decision in accordance with Article 16(5) or Article 17.

3. Providers of online_platforms shall ensure that their internal complaint-handling systems are easy to access, user-friendly and enable and facilitate the submission of sufficiently precise and adequately substantiated complaints.

4. Providers of online_platforms shall handle complaints submitted through their internal complaint-handling system in a timely, non-discriminatory, diligent and non-arbitrary manner. Where a complaint contains sufficient grounds for the provider of the online_platform to consider that its decision not to act upon the notice is unfounded or that the information to which the complaint relates is not illegal and is not incompatible with its terms_and_conditions, or contains information indicating that the complainant’s conduct does not warrant the measure taken, it shall reverse its decision referred to in paragraph 1 without undue delay.

5. Providers of online_platforms shall inform complainants without undue delay of their reasoned decision in respect of the information to which the complaint relates and of the possibility of out-of-court dispute settlement provided for in Article 21 and other available possibilities for redress.

6. Providers of online_platforms shall ensure that the decisions, referred to in paragraph 5, are taken under the supervision of appropriately qualified staff, and not solely on the basis of automated means.

Article 21

Out-of-court dispute settlement

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 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 online_interface, clear and user-friendly.

The first subparagraph is without prejudice to the right of the recipient of the service concerned to initiate, at any stage, proceedings to contest those decisions by the providers of 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 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 online_platforms and of recipients of the service provided by providers of 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 illegal_content, or in relation to the application and enforcement of terms_and_conditions of one or more types of 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 recipient of the service, including the individual or entity that has submitted a notice, the provider of the 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 online_platform, the 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 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 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 recipient of the service, including to the individuals or entities that have submitted a notice, and to the provider of the 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 consumers established under that Directive.

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 25

Online interface design and organisation

1. Providers of online_platforms shall not design, organise or operate their online_interfaces in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.

2. The prohibition in paragraph 1 shall not apply to practices covered by Directive 2005/29/EC or Regulation (EU) 2016/679.

3. The Commission may issue guidelines on how paragraph 1 applies to specific practices, notably:

(a)	giving more prominence to certain choices when asking the recipient of the service for a decision;

(b)	repeatedly requesting that the recipient of the service make a choice where that choice has already been made, especially by presenting pop-ups that interfere with the user experience;

(c)	making the procedure for terminating a service more difficult than subscribing to it.

Article 26

Advertising on online_platforms

1. Providers of online_platforms that present advertisements on their online_interfaces shall ensure that, for each specific advertisement presented to each individual recipient, the recipients of the service are able to identify, in a clear, concise and unambiguous manner and in real time, the following:

(a)	that the information is an advertisement, including through prominent markings, which might follow standards pursuant to Article 44;

(b)	the natural or legal person on whose behalf the advertisement is presented;

(c)	the natural or legal person who paid for the advertisement if that person is different from the natural or legal person referred to in point (b);

(d)	meaningful information directly and easily accessible from the advertisement about the main parameters used to determine the recipient to whom the advertisement is presented and, where applicable, about how to change those parameters.

2. Providers of online_platforms shall provide recipients of the service with a functionality to declare whether the content they provide is or contains commercial_communications.

When the recipient of the service submits a declaration pursuant to this paragraph, the provider of online_platforms shall ensure that other recipients of the service can identify in a clear and unambiguous manner and in real time, including through prominent markings, which might follow standards pursuant to Article 44, that the content provided by the recipient of the service is or contains commercial_communications, as described in that declaration.

3. Providers of online_platforms shall not present advertisements to recipients of the service based on profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679 using special categories of personal data referred to in Article 9(1) of Regulation (EU) 2016/679.

Article 27

Recommender system transparency

1. Providers of online_platforms that use recommender_systems shall set out in their terms_and_conditions, in plain and intelligible language, the main parameters used in their recommender_systems, as well as any options for the recipients of the service to modify or influence those main parameters.

2. The main parameters referred to in paragraph 1 shall explain why certain information is suggested to the recipient of the service. They shall include, at least:

(a)	the criteria which are most significant in determining the information suggested to the recipient of the service;

(b)	the reasons for the relative importance of those parameters.

3. Where several options are available pursuant to paragraph 1 for recommender_systems that determine the relative order of information presented to recipients of the service, providers of online_platforms shall also make available a functionality that allows the recipient of the service to select and to modify at any time their preferred option. That functionality shall be directly and easily accessible from the specific section of the online_platform’s online_interface where the information is being prioritised.

Article 28

Online protection of minors

1. Providers of 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 online_platform shall not present advertisements on their interface based on profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679 using personal data of the recipient of the service when they are aware with reasonable certainty that the recipient of the service is a minor.

3. Compliance with the obligations set out in this Article shall not oblige providers of online_platforms to process additional personal data in order to assess whether the recipient of the service is a minor.

4. The Commission, after consulting the Board, may issue guidelines to assist providers of online_platforms in the application of paragraph 1.

SECTION 4

Additional provisions applicable to providers of online_platforms allowing consumers to conclude distance_contracts with traders

Article 53

Right to lodge a complaint

Recipients of the service and any body, organisation or association mandated to exercise the rights conferred by this Regulation on their behalf shall have the right to lodge a complaint against providers of intermediary_services alleging an infringement of this Regulation with the Digital Services Coordinator of the Member State where the recipient of the service is located or established. The Digital Services Coordinator shall assess the complaint and, where appropriate, transmit it to the Digital_Services_Coordinator_of_establishment, accompanied, where considered appropriate, by an opinion. Where the complaint falls under the responsibility of another competent authority in its Member State, the Digital Services Coordinator receiving the complaint shall transmit it to that authority. During these proceedings, both parties shall have the right to be heard and receive appropriate information about the status of the complaint, in accordance with national law.

whereas

keyboard_tab Digital Service Act 2022/2065 EN

Digital Service Act 2022/2065 EN