Towards the Digital Services Act, the EU Commission’s new package on digital services and online platforms

The public consultation on the Digital Services Act (DSA), the new tool to be launched at the end of the year by the European Commission and which will provide a solid framework for the world of digital services and online platforms, was opened on June 2.

Over the last 20 years, the world of digital services has undergone a huge transformation, expanding and becoming accessible to citizens, businesses and governments across Europe. The deployment of online platforms has contributed to benefits on both the supply and demand side, made the internal market more efficient, fostered innovation and facilitated trade and access to new markets. At the same time, however, this potential and the continued development of the sector and its services brings with it a number of associated challenges and risks related to user protection, operator responsibility and market access.

The subject is currently legislated by a regulatory framework dating back to 2000, consisting of the e-Commerce Directive. The Directive, which has remained virtually unchanged, establishes a set of common rules on transparency and access to information requirements for users and operators of digital services, the principles of accountability related to the use of platforms and rules of cooperation on this matter at government level.

The ongoing evolution of the sector, the increase in the number of players involved and the need to ensure security and the highest degree of competitiveness within the digital single market have therefore made it one of the priorities of the new Commission.

The main purpose of the Digital Services Act is to reduce fragmentation at European level by ensuring the same level of protection and obligation within the Union. The legislation will therefore respond to a twofold need: firstly, to ensure equal access for all European businesses, overcoming the marginalisation of small businesses and fostering innovation, growth and global competition; and secondly, to guarantee the security of users and respect for all fundamental rights, starting with privacy, freedom of expression and the effectiveness of contracts.

A key point concerns the proposal to provide for ex ante rules to ensure competition in the Digital Single Market. According to the European Commission, such intervention would not only lay the foundations for a fairer and more competitive market, but would also significantly increase consumer choice.

The consultation will be developed on two pillars, in line with the structure of the DSA. A first set of rules will take over the content of the e-Commerce directive, in particular, regarding the freedom to provide digital services in the single market, in accordance with the rules in force in the Member State where the service provider is established, and with limited liability for user-created content. The new tool aims to create a system where there are clear roles and obligations for online intermediaries, including non-European intermediaries operating within the Single Market, as well as a more effective system of governance to ensure that these rules are properly implemented while respecting the fundamental rights of citizens and businesses.

The second part focuses on the rules applying to access to the digital market, which is currently made up of a small number of online platforms that make it difficult to access smaller realities. The aim will be to reduce these market imbalances, in order to guarantee the consumer the widest range of choices, while at the same time ensuring competitiveness and innovation in the market.

The consultation is open to citizens and civil society, digital service providers, including online platforms, business, national and local authorities, academia and research institutes. The consultation will close on 8 September 2020, with the possibility to submit contributions in all EU official languages.

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