keyboard_tab Digital Service Act 2022/2065 EN

1.   Providers of hosting services shall put mechanisms in place to allow any individual or entity to notify them of the presence on their service of specific items of information that the individual or entity considers to be illegal_content. Those mechanisms shall be easy to access and user-friendly, and shall allow for the submission of notices exclusively by electronic means.

2.   The mechanisms referred to in paragraph 1 shall be such as to facilitate the submission of sufficiently precise and adequately substantiated notices. To that end, the providers of hosting services shall take the necessary measures to enable and to facilitate the submission of notices containing all of the following elements:

(a)	a sufficiently substantiated explanation of the reasons why the individual or entity alleges the information in question to be illegal_content;

(b)	a clear indication of the exact electronic location of that information, such as the exact URL or URLs, and, where necessary, additional information enabling the identification of the illegal_content adapted to the type of content and to the specific type of hosting service;

(c)	the name and email address of the individual or entity submitting the notice, except in the case of information considered to involve one of the offences referred to in Articles 3 to 7 of Directive 2011/93/EU;

(d)	a statement confirming the bona fide belief of the individual or entity submitting the notice that the information and allegations contained therein are accurate and complete.

3.   Notices referred to in this Article shall be considered to give rise to actual knowledge or awareness for the purposes of Article 6 in respect of the specific item of information concerned where they allow a diligent provider of hosting services to identify the illegality of the relevant activity or information without a detailed legal examination.

4.   Where the notice contains the electronic contact information of the individual or entity that submitted it, the provider of hosting services shall, without undue delay, send a confirmation of receipt of the notice to that individual or entity.

5.   The provider shall also, without undue delay, notify that individual or entity of its decision in respect of the information to which the notice relates, providing information on the possibilities for redress in respect of that decision.

6.   Providers of hosting services shall process any notices that they receive under the mechanisms referred to in paragraph 1 and take their decisions in respect of the information to which the notices relate, in a timely, diligent, non-arbitrary and objective manner. Where they use automated means for that processing or decision-making, they shall include information on such use in the notification referred to in paragraph 5.

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.

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.

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: (i) have not provided non-audit services related to the matters audited to the provider of very large online_platform or of very large online_search_engine concerned and to any legal person connected to that provider in the 12 months’ period before the beginning of the audit and have committed to not providing them with such services in the 12 months’ period after the completion of the audit; (ii) have not provided auditing services pursuant to this Article to the provider of very large online_platform or of very large online_search_engine concerned and any legal person connected to that provider during a period longer than 10 consecutive years; (iii) are not performing the audit in return for fees which are contingent on the result of the audit;

(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).

1.   Member States shall ensure that their Digital Services Coordinators perform their tasks under this Regulation in an impartial, transparent and timely manner. Member States shall ensure that their Digital Services Coordinators have all necessary resources to carry out their tasks, including sufficient technical, financial and human resources to adequately supervise all providers of intermediary_services falling within their competence. Each Member State shall ensure that its Digital Services Coordinator has sufficient autonomy in managing its budget within the budget's overall limits, in order not to adversely affect the independence of the Digital Services Coordinator.

2.   When carrying out their tasks and exercising their powers in accordance with this Regulation, the Digital Services Coordinators shall act with complete independence. They shall remain free from any external influence, whether direct or indirect, and shall neither seek nor take instructions from any other public authority or any private party.

3.   Paragraph 2 of this Article is without prejudice to the tasks of Digital Services Coordinators within the system of supervision and enforcement provided for in this Regulation and the cooperation with other competent authorities in accordance with Article 49(2). Paragraph 2 of this Article shall not prevent the exercise of judicial review and shall also be without prejudice to proportionate accountability requirements regarding the general activities of the Digital Services Coordinators, such as financial expenditure or reporting to national parliaments, provided that those requirements do not undermine the achievement of the objectives of this Regulation.

1.   The Commission may initiate proceedings in view of the possible adoption of decisions pursuant to Articles 73 and 74 in respect of the relevant conduct by the provider of the very large online_platform or of the very large online_search_engine that the Commission suspect of having infringed any of the provisions of this Regulation.

2.   Where the Commission decides to initiate proceedings pursuant to paragraph 1 of this Article, it shall notify all Digital Services Coordinators and the Board through the information sharing system referred to in Article 85, as well as the provider of the very large online_platform or of the very large online_search_engine concerned.

The Digital Services Coordinators shall, without undue delay after being informed of initiation of the proceedings, transmit to the Commission any information they hold about the infringement at stake.

The initiation of proceedings pursuant to paragraph 1 of this Article by the Commission shall relieve the Digital Services Coordinator, or any competent authority where applicable, of its powers to supervise and enforce provided for in this Regulation pursuant to Article 56(4).

3.   In the exercise of its powers of investigation under this Regulation the Commission may request the individual or joint support of any Digital Services Coordinators concerned by the suspected infringement, including the Digital_Services_Coordinator_of_establishment. The Digital Services Coordinators that have received such a request, and, where involved by the Digital Services Coordinator, any other competent authority, shall cooperate sincerely and in a timely manner with the Commission and shall be entitled to exercise their investigative powers referred to in Article 51(1) in respect of the provider of the very large online_platform or of the very large online_search_engine at stake, with regard to information, persons and premises located within the territory of their Member State and in accordance with the request.

4.   The Commission shall provide the Digital_Services_Coordinator_of_establishment and the Board with all relevant information about the exercise of the powers referred to in Articles 67 to 72 and its preliminary findings referred to in Article 79(1). The Board shall submit its views on those preliminary findings to the Commission within the period set pursuant to Article 79(2). The Commission shall take utmost account of any views of the Board in its decision.