On 19 October 2022, the long-awaited European Union regulation, commonly referred to as the Digital Services Act, entered into force. It should be noted that where the European legislator chooses the form of a regulation for a legal instrument, its incorporation into the national legal orders of the Member States is no longer necessary (unlike a directive). The Digital Services Act will therefore become directly effective in the territory of the Czech Republic on 17 February 2024.
The new legislation will not directly apply to traders engaged in the sale of tangible goods in the internet environment. It is primarily intended to apply to so-called providers of services in the information society. In practice, these are mainly entities which, in the course of their activities, work with third-party content (hosting companies, intermediary platforms, social networks, etc.). This means that the impact of the new regulation on the activities of internet traders will be at most indirect, as it imposes obligations on providers of online platforms. This naturally applies only to those traders who use these platforms for the sale of goods.
The obligations of providers of online platforms that enable consumers to conclude distance contracts with traders (for example, Amazon Marketplace) are concentrated in Articles 30 to 32 of the Digital Services Act. These obligations apply to operators of so-called very large online platforms and to all other operators of online platforms that are not micro-enterprises or small enterprises.
According to Article 30 of the Digital Services Act, which regulates the so-called traceability of traders, providers of online platforms will be obliged to carry out proper identification of traders. Before allowing the trader concerned to use its services, the provider of the online platform shall make “best efforts and assess whether the information … is reliable and complete, using any freely accessible official online databases … or request the trader to provide supporting documents from reliable sources. For the purposes of this Regulation, traders are responsible for the accuracy of the information provided.” The obtained information about the trader’s identity must then be made accessible by the platform provider to consumers.
Article 31 of the Digital Services Act then addresses the obligation of providers of online platforms to enable traders to fulfil their legal obligations towards consumers. This means in particular enabling the proper display of mandatory “pre-contractual information and information on product compliance and product safety.” Likewise, basic promotion of the trader should be enabled in the form of the possibility to place on the platform “any sign identifying the trader, such as a trademark, symbol or logo…”. Providers of online platforms will additionally have an obligation to make best efforts to assess whether traders have actually provided the required information to consumers.
Article 32 of the Digital Services Act then establishes a new information obligation of the provider of an online platform towards consumers in the event that it becomes aware that a “trader offered … to consumers in the Union an illegal product or service.”
In conclusion, it can be summarised that the Digital Services Act should not directly affect internet traders, particularly those who do not use online platforms for the sale of goods. On the other hand, those members of APEK who, in the course of their activities, store third-party content should pay increased attention to the new obligations arising from the Digital Services Act.
Josef Aujezdský
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 01/2023 intended for members of that association.
This text was translated from Czech to English using an AI translator.