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 it introduces for all internet businesses that 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 content created by users. Some of these persons (operators of marketplaces or other platforms) are additionally subject to other specific obligations; however, in this legal circular we shall focus solely 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 continuously updated.” 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 method of communication, which shall not be solely automated tools.”
The provision of Article 14 of the Regulation on Digital Services newly establishes the obligation of the business to publish in the contractual terms the rules it applies when 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 in their internal complaint-handling system. This information shall be set out in clear, plain, intelligible, user-friendly and unambiguous terms and published 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 when moderating content, namely “objectively, proportionately and with due care, giving due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of recipients of the service, such as 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-enterprises or small enterprises are then obliged to regularly report 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, unambiguous and easily comprehensible reports on all content moderation” which it performed in the relevant period.
A further new obligation is the necessity to introduce mechanisms for the notification of unlawful content stored on the trader’s equipment by third parties. “These mechanisms must be easily accessible and user-friendly and must enable the submission of notifications by electronic means.” Entities that focus on storing content on a larger scale mostly have these processes already established at present.
Far more burdensome will apparently be the activities associated with the obligation to provide the user with extensive reasoning if content uploaded by the user is restricted or deleted (including on the basis of notification submitted by a third party), as introduced by the provision of Article 17 of the Regulation on Digital Services. The scope of information to be provided on a mandatory basis will indeed be considerable and may therefore place relatively high demands on businesses.
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.