EU Protection for Users of Intermediary Service Platforms

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Author Simon Deane-Johns

Introduction and scope

The EU’s Digital Services Act (DSA) establishes a harmonized approach to protecting EU-based users of online communication, e-commerce, hosting and search services across the EU, by granting intermediary service providers (“ISPs”) exemption from certain liability if they perform certain obligations. An ISP will be in scope if it is either based in the EU or has a substantial connection with the EU (a significant number of users as a proportion of the population or by targeting its activities at one or more Member States). There are extra requirements for ISPs with at least 45m average monthly active EU users (designated as ‘very large online’ (VLO) platforms and VLO search engines). There are exemptions for small enterprises and micro-enterprises. A small enterprise employs fewer than 50 persons and has an annual turnover and/or annual balance sheet total which does not exceed €10m. A micro-enterprise employs fewer than 10 persons and has an annual turnover and/or annual balance sheet total that does not exceed €2m.

The DSA applies from 17 February 2024 (4 months after designation as a VLO platform/search engine). However, ISPs will need to begin reporting their average monthly active users by 17 February 2023, and then every six months; and arrangements for the designation of VLO status and supervisory fees will apply from 16 November 2022.

Users can be any natural or legal person actually using or receiving the intermediary service, (particularly those seeking information or making information accessible).

Intermediary services consist of the transmission of data in or the provision of access to a communication network (‘mere conduit’); the automatic, intermediate and temporary storage of information, solely for its more efficient onward transmission to other users on their request (‘caching’); and/or the storage of information provided by, and at the request of, a user (‘hosting’). Online search engines are therefore ISPs, for example.

This note summarises the provisions relating to ISPs and not those relating to the regulatory regime itself. Please get in touch if you have queries or concerns about compliance or your rights.

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