What is the DSA?
The Digital Services Act (DSA) of 19 October 2022 introduces harmonised rules to create a safe, predictable and trusted online environment for users. The DSA ensures fundamental rights such as the freedom of expression and of information, the freedom to conduct a business, the right to non-discrimination and the attainment of a high level of consumer protection. To that effect the DSA imposes transparency and due diligence obligations to the providers of intermediary services in order for the users to be able to use their services without being exposed to illegal content and with regard for their fundamental rights.
The DSA does not aim to apply to specific online content, nor to declare it illegal or not. It is directly governed by Belgian legislation specific to each area concerned (for example, intellectual property rights, rules on distance selling, finance or credit, product safety, the provision of audiovisual media services, the fight against terrorism and criminal offenses, the protection of personal data, the fight against the sexual abuse of minors, competition and unfair commercial practices, public health issues (in particular linked to advertising and the sale of medicines online), etc.).
The DSA is a European regulation, which means that it is directly applicable since it came into effect on 17 February 2024, without transposing into Belgian legislation.
Online intermediary services
Who are the providers of online intermediary services?
The DSA specifically aims at online services of providers of intermediary services. These are:
- mere conduit services such as an Internet provider, wireless access points, virtual private networks, etc.;
- caching services such as DNS services, [...], etc.;
- hosting services such as cloud computing, web hosting, online platforms, online marketplaces, large search engines, social media, etc.;
This regulation applies to all providers of online intermediary services who provide services to users within the European Union, regardless of where the provider of online intermediary services is established.
The DSA lays down the rules regarding the liability of providers of online intermediary services and obliges them to handle in a diligent manner. Compliance with these obligations is monitored. Providers of online intermediary services who do not abide by the rules, can be sanctioned.
Obligations of the providers of online intermediary services
All providers of online services have to comply with a number of basic rules. In addition, there are extra rules for providers of hosting services, online platforms, online marketplaces, very large online platforms and very large search engines. Consequently, the obligations imposed by the DSA are applicable to all or part of the service providers, depending on their nature and/or their “size”. You will find a detailed survey of the obligations here.
Monitoring and enforcement of the DSA
Authorities authorised to enforce the DSA
Outside of this Regulation’s framework each European Member State designates one or more competent authorities for monitoring.
As numerous competences are involved in the implementation of the DSA, at federal and community level, 4 competent authorities have been designated in Belgium:
- the BIPT has been designated at federal level by virtue of the Act of 21 April 2024;
- the Vlaamse regulator voor de media (VRM) designated by the Flemish Community (Decree of 27 March 2009);
- the Conseil Supérieur de l’Audiovisuel (CSA) designated by the French Community (Decree of 4 February 2021);
- the Medienrat designated by the German-speaking Community (Decree of 01/03/2021).
The DSA also demands that each Member State designates a national coordinator. Considering the Belgian division of powers, this should be done via a cooperation agreement concluded between the Federal State and the Communities. That agreement is now ratified by the federal and community parliaments and designates the BIPT as the national coordinator.
This agreement also defines the way in which the competent authorities, including the Coordinator, shall cooperate in practice to implement the DSA.
Role of the competent authorities
Depending on their respective powers, the competent authorities (BIPT, VRM, CSA and Medienrat) have the task of concretely implementing the DSA and ensuring that providers established in Belgium or who have appointed their legal representative there comply with it. Each competent authority deals substantively with the matters that fall within its brief in light of the Belgian division of powers. Specifically, each regulatory body will prosecute infringements occurring on its territory and in matters for which it is competent.
To carry out its tasks successfully, the BIPT has the necessary powers to, for example, certify trusted flaggers, conduct investigations in the event of suspected violations of the DSA or to force a provider to comply with its obligations and, in addition, if necessary, to impose sanctions (including fines of up to 6% of the global turnover).
In cases of very serious harm, a competent authority may also impose, among other things, immediate measures.
The DCS’s role
As the Coordinator, the BIPT is responsible for coordinating, at national level, all matters related to the supervision and enforcement of the Regulation and contributes to the effective and consistent supervision and enforcement of the Regulation throughout the European Union. As the single point of contact, its role is to ensure the smooth flow of information to other competent authorities, coordinators of other European Union Member States, the European Digital Services Board, the European Commission and providers of intermediary services. The Coordinator is also in charge of receiving complaints from users of intermediary services, applications for certification and recognition (trusted flaggers, out-of-court dispute settlement bodies, researchers) and of centralising information on orders issued by Belgian authorities to a service provider to remove online content.
Finally, there is close cooperation between the national DSCs and the European Commission in the context of the Commission's proceedings against online platforms and large online search engines whose average monthly number of active service users in the EU equals or exceeds 45 million (e.g. TikTok, Instagram, Facebook, Google, X, Snapchat, Amazon, etc).
While it is the Commission that is in charge of monitoring and implementing the additional obligations specifically imposed on these players that are considered as very large online platforms and/or very large online search engines, it may seek the assistance of one or more national Digital Services Coordinators. These in turn may call on any competent authority whose contribution they deem necessary. The additional obligations in relation to these very large platforms and search engines relate in particular to the measures aimed at mitigating systemic risks. -These are the risks arising from the design or operation of their service that may be harmful to society or citizens. Supervision of the designated very large online platforms and search engines under DSA | Shaping Europe’s digital future (europa.eu)
Other players within the DSA
Trusted flaggers
Trusted flaggers are independent organisations that detect, identify and report illegal content to online platforms.
Online platforms must treat notices from recognised trusted flaggers as a priority.
Trusted flaggers target a well-defined type of content (discrimination, hate speech, racism, sexual misconduct, etc.).
Within the framework of the DSA, such organisations can apply to be recognised as trusted flaggers. Belgian organisations wishing to be recognised as a trusted flagger have to submit their application to the BIPT. If they meet the conditions, they will be awarded that status. However, not everyone can obtain the status of trusted flagger (for more information, see the ‘trusted flagger’ page).
Certified out-of-court dispute settlement bodies
These dispute bodies handle disputes between users and online platforms. They constitute an extra option for handling disputes, in addition to the online platform's internal complaints procedure and settlement in court.
To operate within the framework of the DSA, a dispute settlement body must apply for certification with the Coordinator of the country where it is based. In Belgium, this is the BIPT. If the dispute settlement body meets the conditions, it will acquire this status.
Online platforms must inform their users of the existence of this alternative form of dispute settlement.
Vetted researchers
Researchers investigating very large online platforms or very large online search engines may request access to the data of those platforms. Their research must aim to contribute to the detection, identification and understanding of systemic risks or to the assessment of the appropriateness, efficiency and impact of risk mitigation measures taken by the online platforms.
To this end, they have to submit an application to the BIPT. If they meet the conditions, they will be recognised as ‘vetted researchers’.
Users
Users who notice illegal content can report it to the relevant online service providers. In the case of an online platform, a user can complain directly through that online platform's own complaint system if he is not satisfied with the follow-up given to his notice.
In addition, a user can also submit a complaint to the Coordinator. More information on how to submit a complaint to the BIPT can be found here.
The user can also choose to submit a dispute to an out-of-court dispute settlement body or a judge.
Contact
Should you have any questions regarding the DSA in general, please contact the BIPT at dsa@bipt.be.