In this legal circular, we shall examine in greater detail the EU Regulation on Digital Services (Digital Services Act), which enters into force on 17 February 2024. Specifically, we shall address the new obligations which it brings for all internet entrepreneurs who engage in the storage of any user-generated content. This therefore concerns not only hosting companies, but also, for example, persons who operate discussion forums, publish user reviews or store any other user-generated content. Some of these persons (operators of marketplaces or other platforms) are additionally subject to other specific obligations; however, in this legal circular we shall concentrate only on those general obligations which should be fulfilled by all persons storing user-generated content.
The first of these is of a rather formal nature, whereby providers of these “intermediary” services must designate two points of contact. Specifically, this concerns a point of contact for the purposes of direct communication (by electronic means) particularly with the authorities of Member States and the European Commission, whilst the second point of contact is designated for communication with recipients of the service. Information regarding the point of contact for communication with public authorities must be published, including the language for conducting communication, and must be “easily accessible and be kept up to date.” The point of contact for recipients of the service must enable communication “by electronic means and in a user-friendly manner, allowing recipients of the service to choose the means of communication which shall not be exclusively automated tools.”
The provision of Article 14 of the Regulation on Digital Services newly establishes an obligation for the entrepreneur to publish in the terms and conditions the rules which it applies in moderating user-generated content. Specifically, the provider shall inform “about all policies, procedures, measures and tools used for the purpose of content moderation, including algorithmic decision-making and human review, as well as about the rules of procedure of their internal complaint-handling system. This information shall be set out in clear, plain, intelligible, user-friendly and unambiguous terms and shall be made publicly available in an easily accessible and machine-readable format.” The provision of Article 14(4) of the Regulation on Digital Services also regulates in general terms how providers of digital services should actually proceed in moderating content, namely “in an objective, proportionate and diligent manner, with due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter.”
Pursuant to the provision of Article 15 of the Regulation on Digital Services, providers who are not micro or small enterprises are then obliged to report regularly information regarding content moderation performed by them. At least once a year, the provider is thus obliged to publish “in a machine-readable format easily accessible, clear and comprehensible reports on all content moderation” which it performed in the relevant period.
A further new obligation is the necessity of implementing mechanisms for reporting illegal content stored on the trader’s equipment by third parties. “These mechanisms must be easily accessible and user-friendly and must allow for the submission of notices by electronic means.” Entities which focus on storing content on a larger scale mostly already have these processes in place at present.
Considerably more burdensome will then likely be the activities connected with the obligation to provide the user with extensive reasoning if restriction or deletion of content uploaded by the user occurs (including on the basis of a notice submitted by a third party), which is brought by the provision of Article 17 of the Regulation on Digital Services. The scope of information to be provided as a matter of obligation will namely be considerable and may thus place relatively high demands on entrepreneurs.
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. 12/2023 intended for members of this association.
This text was translated from Czech to English using an AI translator.