June 11, 2020

On 2 June 2020, the European Commission launched a wide-ranging public consultation on the Digital Services Act (the DSA), an ambitious legislative package to regulate online platforms and services. The consultation seeks to gather views from stakeholders to help shape the future rulebook for digital services.

The public consultation is available here and it is open for responses until 8 September 2020. Legislative proposals are expected to be published in the first quarter of 2021.

What is the DSA?

Against the backdrop of increasing regulatory pressure on both sides of the Atlantic, the DSA was announced by the President of the Commission, Ursula von der Leyen, in her political guidelines in the autumn of 2019. The DSA is expected to be the most significant intervention in the digital single market since the E-Commerce Directive of 2000.

As the Commission has pointed out, the framework in place has helped the growth of European digital services, but it does not provide answers to many of today’s pressing questions on the role and responsibility of online platforms, especially the largest ones.

Commissioner for Internal Market Thierry Breton puts it thus: “Online platforms have taken a central role in our life, our economy and our democracy. With such a role comes greater responsibility, but this can happen only against the backdrop of a modern rulebook for digital services.”

The DSA is expected to address a wide range of matters, under two broad umbrellas:

• Updating the fundamentals of the E-Commerce Directive, a central goal of which is to lay down “more stringent” rules for the responsibilities of digital services.
• Addressing the issue of a level playing field in European digital markets, by so-called ex ante rules, to ensure that markets characterised by a few large gatekeeper platforms remain fair and contestable.

Margrethe Vestager, the Commission Vice President for Digital, has also expressed her hope that the DSA can be used to prevent the tipping of markets, where one company obtains high monopoly profits and market share, creating an anti-competitive environment for other firms.

The Consultations

In its main public consultation, the Commission seeks input on six specific areas:

• Keeping users safer online;
• Reviewing the liability regime in the e-Commerce Directive;
• Gatekeeper platforms;
• Emerging issues and opportunities, including online advertising and smart contracts;
• The situation of platform workers; and
• Governance structures to reinforce the completion of the single market for digital services.

In addition, the Commission seeks feedback on two DSA “roadmaps”, broadly reflecting the two DSA strands. These two roadmap consultations seek views on the Commission’s brief evaluations of certain policy initiatives under the two umbrellas, in the form of so-called “inception impact assessments”. As such, the Commission published:

• A roadmap on the Internal Market and clarifying the responsibilities of online platforms; and
• A roadmap on ex ante regulatory instruments for very large platforms.

These roadmap consultations are open for response until 30 June 2020.

In parallel, a second consultation was launched on the same day on a possible new competition tool.

Our Intro to the DSA is available here and Wiggin’s EU and Regulatory Team is available to support clients in preparing their responses to the consultations.