Providers of online intermediary services are providers who provide an information society service to transmit, store or publish users' content.
Examples: Online platforms such as social media platforms, job platforms, video streaming platforms, collaborative economy platforms and online marketplaces, hosting and cloud computing services, ISPs, VPNs, wireless access points, CDNs (content delivery network), etc.
Categories of intermediary services
Within the context of the DSA, special attention is paid to the following categories:
Category 1: Mere conduit and caching
- Mere conduit is a service consisting of the provision of access to a communication network or the transmission in a communication network of information provided by a recipient of the service.
- Caching is a 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, with a view to render the information's onward transmission to other recipients more efficient.
Category 2: Hosting services
A service consisting of the storage of information provided by, and at the request of, a recipient of the service.
Category 3: Online platforms
A type of hosting service that, at the request of a recipient of the service, stores and disseminates information to the public.
Category 4: Online marketplaces
An online platform allowing consumers to conclude distance contracts with traders.
Category 5: Very large online platforms (VLOPs) and of very large online search engines (VLOSEs)
- VLOPs are online platforms with an average of 45 million or more monthly active users of the service within the EU (i.e. 10% of the EU population).
- VLOSEs are search engines with an average of 45 million or more monthly active users of the service within the EU (i.e. 10% of the EU population).
Obligations for providers of online intermediary services
The obligations for providers of online intermediary services vary according to the provider’s size and category. In the first place a provider has to determine which of the five categories he belongs to, noting that a provider supplying multiple services may belong to more than one category.
There are a number of obligations that apply to all providers of online intermediary services, regardless of their category and size. Moreover, additional obligations are imposed depending on the category of the intermediary service and its size.
General obligations for all providers of intermediary services
A number of general rules and obligations apply to all providers of intermediary services, namely:
- When they receive an order to act against illegal content or an order to provide information issued by an authority, inform the latter of any effect given to the order without undue delay, specifying if and when effect was given to the order;
- Designate a single point of contact to enable the users of the service to communicate with them directly, by electronic means and in a user-friendly manner;
- If the provider of the intermediary service has his office outside of the EU, designate a legal representative within the EU;
- Publish clear and accessible general terms and conditions. These terms and conditions shall contain details regarding the policy, processes and moderation teams. Important changes have to be notified to the consumer;
- Give explanations to the users, the content of whom is subject to some form of restriction or removal;
- Notify the user of the receipt of orders (for instance an order to no longer provide an illegal product through the platform);
- (Annual) transparency reporting obligation regarding:
- the number of orders received (removing illegal content or providing information)
- the number of complaints received
- content moderation, including automated means
- Exception for micro or small enterprises -
The reporting obligation does not apply to micro or small enterprises. These are enterprises with less than 50 employees and an annual turnover of maximum 10 million EUR.
Specific obligations for hosting services
In addition to the general obligations providers of hosting services need to comply with the following additional obligations:
- Develop a system enabling users (consumers and companies) to report illegal content;
- Motivate why restrictions can be imposed upon users;
- Draft a transparency procedure for complaint handling that is swift, efficient, proportionate and motivated;
- Report content jeopardising the safety of 1 or more persons to the relevant authorities.
Specific obligations for online platforms
In this case the general rules apply as well as the rules for hosting services and the specific rules for online platforms. The latter include in essence:
- Implementing an internal complaint handling system for users who do not agree with the restrictions or decisions imposed (such as removal);
- Cooperating in the context of certified out-of-the-court dispute settlement and reporting;
- Processing reports of certified ‘trusted flaggers’ with priority;
- Measures against abuse (suspension or termination of accounts of users who regularly and manifestly publish illegal content or who make false reports of illegal content);
- Annual reporting on the number and type of measures regarding illegal content; on the number of users per month;
- Reporting to/Sharing with the European Commission any motivated decision to restrict or remove illegal content or content that is incompatible with their general terms and conditions through the DSA Transparency Database;
- Additional transparency regarding online advertising;
- Transparency regarding recommendation algorithms;
- Supervision and measures to prevent violations of compliance with privacy, safety and protection of minors on the platform.
- Exception for micro or small enterprises -
These specific obligations do not apply to micro or small enterprises. These are enterprises with less than 50 employees and an annual turnover of maximum 10 million EUR.
Specific obligations for online marketplaces
If the platform allows the user to conclude distance contracts with traders, as for example on online marketplaces, there are a number of additional rules that apply, notably:
- Traceability of traders (verification of traders’ contact and payment details);
- Product conformity (among other things product safety).
- Here as well, there is an exception for micro or small enterprises. -
Specific obligations for VLOPs and VLOSEs
Online platforms (VLOPs) or search engines (VLOSEs) whose average number of monthly active users exceeds 45 million fall into this category.
The European Commission has already identified a number of providers, including YouTube, Google, X and Facebook. As for the additional obligations specifically applicable to them, the monitoring is carried out solely by the European Commission.
These platforms are subject to the following additional obligations, among others, to manage their specific systemic risks:
- Provide clear and easily accessible summaries of their terms and conditions;
- General terms and conditions in all languages of the member states in which they provide services;
- Analysis of systemic risks;
- Specific measures for risk mitigation;
- Install a crisis response mechanism;
- Carry out an independent annual audit;
- Explain how recommendation systems operate and allow to set a preferred option;
- Additional obligation regarding online advertising;
- Grant vetted researchers access to data;
- Additional transparency reporting obligations;
- Annual supervisory fee for the European Commission.
Contact
Should you have any questions regarding the online intermediary services of the DSA in general, please contact the BIPT at dsa@bipt.be.