DSA Legal Representative
EDSR provides high-quality legal representative services pursuant to Article 13 of the Digital Services Act (DSA)
The DSA has significant implications for companies doing business in the EU and is applying to all in-scope intermediary service providers since 17 February 2024. For some companies that were designated as very large online platforms (VLOPs) or very large online search engines (VLOSEs), the DSA applied since 25 August 2023.
Pursuant to article 13 of the DSA, providers of intermediary services which offer services in the EU but don’t have an establishment in the EU, will have to appoint a legal representative in one of the Member States where they offer their services.
Non-compliance with the DSA can damage a company’s reputation, as well as result in fines up to 6% of the annual worldwide turnover of the provider of intermediary services. It is crucial for intermediary services providers not established in the EU to start preparing for the new requirements in order to avoid any legal or financial consequences.
Contact us now for more information about the DSA Legal Representative or register now (no fees will be charged before 17 February 2024).
Do you need to appoint a
DSA Legal Representative in the EU?
- You are a provider of intermediary services located outside the EU;
- You don’t have any establishment in the EU;
- You offer your services in the EU.
What is the DSA all about?
What is the DSA?
The Digital Services Act (DSA) is an EU regulation that, alongside with the Digital Markets Act (DMA), aims to create a safer digital space for users. This is done through rules targeting digital services that act as intermediaries, connecting consumers with goods, services, and content. These rules foster a safe, predictable and trusted online environment in which fundamental rights are protected.
What is the role of the DSA legal representative?
Pursuant to article 13 of the DSA, the legal representative of intermediary service providers ensures effective communication with Member States’ competent authorities, the Commission and the European Board for Digital Services (the “Board”), including receiving, complying with, and enforcing decisions related to the DSA. Providers of intermediary services must equip their legal representative with the necessary powers and resources for efficient cooperation and to comply with such decisions.
While this role doesn’t create an establishment in the EU, designating a legal representative confers competence to the Member State where the representative is located. In cases where providers do not designate a legal representative, competence lies with all Member States or the Commission, as applicable.
How should the legal representative be designated?
The legal representative of intermediary service providers must be designated in writing. Intermediary service providers must provide their legal representative’s contact details to the Digital Services Coordinator in the relevant Member State, ensuring the information is public, accessible, accurate, and updated.
What is the legal representative's liability?
The legal representative of intermediary service providers may be held liable for non-compliance with obligations under the DSA, without prejudice to the liability and legal actions that could be initiated against the provider of intermediary services.
Who does the DSA apply to?
The DSA applies to intermediary service providers offering their services to users that have their place of establishment or are located in the Union, irrespective of where the providers of those intermediary services have their place of establishment.
What are intermediary service providers?
Intermediary service providers are defined quite broadly. Intermediary service providers can take various forms, such as: online marketplaces, social networks, content-sharing platforms, app stores, online travel and accommodation platforms, internet service providers, cloud services or messaging services.
Intermediary services are defined in the DSA in a threefold approach:
1. a ‘mere conduit’ service, such as internet service providers, wireless networks, domain name registries, VPN, DNS services, VOIPs, interpersonal communication services;
2. a ‘caching’ service, such as content delivery networks, which store data for a limited time so they can be retrieved by a user or by third-parties
3. a ‘hosting’ service, consisting of the storage of information provided by, and at the request of, a recipient of the service – e.g., web or cloud hosting, including (permanent) file storage and sharing.
Are there any exceptions to the applicability of the DSA to intermediary service providers?
There are some exceptions to the applicability of the DSA, namely regarding micro and small enterprises as defined in Recommendation 2003/361/EC (enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million).
These exceptions include:
1. Transparency reporting obligations for providers of intermediary services as per article 15(2).
2. Exclusion for some additional provisions applicable to providers of online platforms (article 19 to to 28, with the exception of article 24(3)).
3. Exclusion for some additional provisions applicable to providers of online platforms allowing consumers to conclude distance contracts with traders (article 29 to 32).
What are the obligations of intermediary service providers under the DSA?
In-scope intermediary service providers need to comply with several obligations, including:
- Mechanisms to flag illegal content online;
- Rules to trace sellers to combat scams;
- The possibility for users to challenge content removal or restriction;
- Several transparency measures which include better informing users regarding T&C, as well as why some content or products are being recommended;
- Obligations bolstering the protection of minors on any platform in the EU;
- Specific obligations for very large online platforms (VLOPs) and very large search engines (VLOSEs).
- New crisis response mechanism in situations such as a pandemic or war;
- Bans on targeted advertising on online platforms by profiling children or based on special categories of personal data;
What are VLOPs and VLOSEs?
Very large online platforms (VLOPs) and very large online search engines (VLOSEs) are online services with over 45 million users in the EU (equivalent to 10% of the EU population), which must comply with stricter rules under the DSA due to their potential to cause societal risks, different in scope and impact from those caused by smaller platforms.
For a list of the VLOPs and VLOSEs that were designated by the Commission, please click the following link: DSA: Very Large Online Platforms and Search Engines (europa.eu)
What are the penalties for non-compliance with the DSA?
Member States will appoint an independent authority called “the Digital Services Coordinator”, which will be responsible for supervising intermediary service providers in their Member States and impose penalties, which include financial fines.
VLOPs and VLOSEs will be directly supervised by the EU Commission.
Fines can go up to 6% of the global annual turnover of the intermediary service provider.
Both the Digital Services Coordinator and the Commission may require immediate actions to address very serious harms.
As a last resort, it is possible to request a court for the suspension of the provider’s service.
Does the DSA replace sector specific legislation?
No, the DSA complements sector-specific legislations such as:
- Audiovisual Media Services Directive (AVMSD);
- Directive on Copyright in the Digital Single Market;
- Consumer Protection Acquis, or;
- Regulation on preventing the dissemination of terrorist content online (TCOR)
If you’re looking to appoint a legal representative pursuant to the Regulation on preventing the dissemination of terrorist content online (TCOR), EDSR also provides these services. Please contact us to learn more or head over to our TCOR page!