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DSA flash: What’s new in November 2022?

03 November 2022

The EU Digital Services Act with its wide-sweeping regulatory regime for all types of online intermediaries active in the EU was published on 27 October, resulting in its upcoming entry into force on 16 November 2022. What does this mean for the ensuing time-line? Last week’s meeting, on 25 October, of the eCommerce Experts Group of DG Connect gives us further insights into the Commission’s plans for the implementation of several acts. The issuing of implementing and delegated acts, as well as guidelines and industry standards, will over time give some much needed additional guidance, if not clarity, on some of the bigger question marks which the final text of the Digital Services Act has left us with. However, the Commission is focusing on major players first - leaving intermediaries with many remaining uncertainties over the next months.

On the Horizon

Together with the fixed dates prescribed by the Digital Services Act itself, we are now looking at the following time-line based on the presentation of the eCommerce Experts Group:

27 October 2022: Publication in the Official Journal of the EU
16 November 2022: Entry into force
17 February 2023: Due date for first publication of average monthly active user numbers for all online platforms
February 2023: First designations of Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs)
March 2023: Implementing Act under Art 83 DSA to enter into force, regulating certain procedures vis-à-vis VLOPs and VLOSEs, specifically investigation and enforcement by the Commission, hearings and disclosure of information
May/June 2023: Implementing and Delegated Act under Art 43 DSA on the supervisory fee for VLOPs and VLOSEs to enter into force.
July 2023: Delegated Act under Art 37 DSA on the procedure for independent audits of risk assessments conducted by VLOPs and VLOSEs to enter into force.
From July 2023: The full set of DSA obligations for all designated VLOPs and VLOSEs will apply 4 months after their respective individual designations.
From second half of 2023: Implementing acts, delegated acts and guidelines on further topics.
17 February 2024: The DSA becomes applicable for all regulated intermediaries

The above time-line leaves several other important topics as lower priorities for the Commission. The resulting lack of prioritization that is a direct consequence of the over-ambitious focus of the regulator on an expedited application of the DSA for VLOPs and VLOSEs is regrettable. It leaves platforms in the dark on many aspects which require long-term preparations and technical implementation, including the following - to name but a few pain points:

What is the appropriate methodology for calculating monthly active user numbers? How to deal with users accessing from multiple devices, for instance, or using a VPN?

How detailed and granular will the annual transparency reports on content moderation under Art 15 DSA have to be?

What constitutes a dark pattern in the eyes of the DSA? Will similar guidelines apply as issued by the European Data Protection Board in March 2022 for the GDPR - even though dark patterns under the GDPR have been expressly excluded from the application of the DSA at the last minute in the final wording of Art 25?

How are VLOPs and VLOSEs supposed to grant secure access to their data to Digital Services Coordinators, the Commission and to researchers under Art 40 DSA, and what kind of data access requests will be granted under this provision?

While intermediaries are grappling with a host of questions, the same will be true for the individual member states having to make their own preparations for DSA application and enforcement - from setting up national Digital Services Coordinators to amending existing laws, such as the German Network Enforcement Act (“Netzwerkdurchsetzungsgesetz” - a fabulous word in the fine tradition of the infamous “Donaudampfschifffahrtsgesellschaft”, longest word recorded in the German Duden, and its parodistic spin-off, the “Donaudampfschifffahrtsgesellschaftskapitänspatentsanwärterprüfungsausschuss”).

Our dedicated Taskforce will keep you up to speed with further Digital Services Act updates. In the meantime, you can consult our previous updates and summaries on the Digital Services Act on Engage.

Authored by Anthonia Ghalamkarizadeh.