JUSTICE - No. 71

44 No. 71 JUSTICE Digital Services Act Background The EU Digital Services Act (DSA) created a single set of rules that apply across the entire EU, with the goal of creating a safer digital space in which the fundamental rights of all users of digital services are protected. After coming into effect in January 2024, the DSA primarily concerns online intermediaries and platforms, such as social networks, content-sharing platforms, and app stores. The DSA regulates the obligations of digital services (including marketplaces) that act as intermediaries in connecting consumers with goods, services, and content, and protects users by enforcing fundamental rights online, establishing a transparency and accountability framework for online platforms, and establishes a single, uniform framework across the EU.22 The DSA gives users a set of new rights, including a right to complain to the platform, seek out-of-court settlements, complain to their national authority in their own language, or seek compensation for breaches of the DSA. It establishes the EC as the primary regulator for very large online platforms and very large online search engines, while other platforms and search engines will be under the supervision of the Member States where they are established. The Commission will have enforcement powers similar to those under antitrust proceedings. An EU-wide cooperation mechanism will be established between national regulators and the Commission. The DSA sets out EU-wide rules that cover detection, flagging, and removal of illegal content, as well as a new risk assessment framework for very large online platforms and search engines on how illegal content spreads on their service. Illegal content is defined at the EU level or within national laws, an example being “terrorist content.” As a general rule, if content is illegal only under the national laws of a Member State, it should only be removed within the territory where it is illegal. The DSA is an important step in defending European values and protecting against antisemitic content in the online space. It respects international human rights norms, and sets high standards for effective intervention, for due process, and the protection of fundamental rights online. It preserves a balanced approach to the liability of intermediaries and establishes effective measures for tackling illegal content and societal risks online. In doing so, the DSA aims at setting a benchmark for a regulatory approach to online intermediaries, also at the global level. These rules apply to all in the EU single market, without discrimination, including to those online intermediaries established outside of the EU that offer their services in the single market. When not established in the EU, they must appoint a legal representative. Given the reality that online platforms play an increasingly important role in the daily lives of Europeans, the rules attempt to create a safer online experience for citizens by reducing their exposure to illegal activities and dangerous goods and ensuring the protection of fundamental rights. When enabled by national laws, Member State authorities will be able to order any platform operating in the EU, irrespective of where it is established, to remove illegal content. Very large online platforms will need to take mitigating measures at the level of the overall organization of their service to protect their users from illegal content. Harmful content that falls below the criminal threshold will not be treated in the same way as illegal content. The new rules only impose measures to remove or encourage removal of illegal content. This will therefore present barriers to the removal of much antisemitic material that, by its volume, creates more harm than illegal content, and in time regulators may have to consider other forms of action. The DSA is intended to protect freedom of expression, including freedom and pluralism of the media. It is designed to strike a balance between creating rules to tackle illegal content and safeguarding freedom of expression and information online. It provides one set of rules for the entire Union, thereby granting all EU citizens the same rights, a common enforcement system, and unified rules for online platforms. This means 21. UNESCO, “Addressing antisemitism through educationenabling learners to recognise and counter contemporary antisemitism,” available at https://www.unesco.org/en/ education-addressing-antisemitism; see also UNESCO, “UNESCO trains educators in the EU to better address antisemitism, intolerance and discrimination,” Oct. 6, 2023, latest update October 31, 2023, available at https:// www.unesco.org/en/articles/unesco-trains-educators-eubetter-address-antisemitism-intolerance-anddiscrimination 22. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/ EC (Digital Services Act), OFFICIAL JOURNAL OF THE EUROPEAN UNION, Publications Office, Oct. 27, 2022, available at https://eur-lex.europa.eu/legal-content/EN/ TXT/PDF/?uri=CELEX:32022R2065

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