Does my business need to comply with the DSA?

The Digital Services Act introduces significant substantive obligations regarding content moderation, due diligence and governance on certain online services. Importantly, however, these obligations don't apply uniformly to all digital services operating in the EU. Instead, the DSA implements a proportionate approach to regulating the digital space, where the extent of the applicable obligations depends on your business type and size.

In this post, we'll explain how the the tiering of obligations works and provide you with a simple and free tool to determine the degree to which your business is required to comply with the EU Digital Services Act.

First things first: are you even in the scope?

We usually determine whether one is required to comply with rules by looking at their geographic, material and personal scope.

Somewhat unusually (but reflecting an approach that is fast becoming the norm in EU lawmaking), the geographic scope is determined not by the location of the entity providing the service, but rather the location of the service user. Put plainly, it doesn't matter where you are based, if you have users in the EU, the service you provide to those users must comply with the Digital Services Act.

In terms of material and personal scope, the DSA clearly doesn't regulate all services provided to users in the EU. Instead, the Regulation defines certain 'intermediary services', which themselves are defined as specific types of 'information society services'.

Accordingly, the Regulation applies to 'mere conduit', 'caching' and 'hosting' services which are normally provided (a) for remuneration, (b) at a distance, (c) by electronic means and (d) at the individual request of the service recipient. In simpler terms, if you provide online services involving the transmission or storing of information for your users and you receive any remuneration (even if non-monetary) in return, you are required to comply with the DSA. Examples include internet infrastructure provision, website hosting, cloud computing, online platforms of any kind, online marketplaces of any kind and similar online services.

Determining your exposure: what tier of obligations applies to your business?

If you're still reading, you seem to have determined that the DSA applies to your business, meaning that now it's critical to determine the extent of your obligations.

The Digital Services Act outlines five distinct tiers of obligations applicable to intermediary services, which apply proportionately and cumulatively depending on your service type and size.

Accordingly:

• All intermediary services are required to comply with a base set of obligations (subject to tier 1);

• Hosting services have additional obligations applying cumulatively (subject to tiers 1+2);

• Online platforms have further obligations applying cumulatively (subject to tiers 1-3);

• Online marketplaces have further obligations applying cumulatively (subject to tiers 1-4); and

• Very Large Online Platforms and Very Large Online Search Engines are subject to the full suite of obligations (tiers 1-5), unless they don't offer an online marketplace, in which case tier 4 isn't applicable.

The latter are a special category defined as services with at least 45 million monthly active users in the EU on average and will be the subject of a separate blogpost here at DSAtoday.eu.

If you find the determination of the exact extent of duties applicable to your business confusing, you certainly aren't alone. That's why DSAtoday.eu offers a free resource allowing you to determine the tiers of DSA obligations applicable to your business. It's available free of charge and only requires a few clicks, no strings attached. If you're interested, head on over to the home page and select 'Free check'.

If reading this post has lead you to the conclusion that you are required to comply with the Digital Services Act, we're excited to announce our bespoke DSA compliance briefing. This is a paid (but moderately priced) service where we:

• intake basic information regarding your business via a dedicated compliance questionnaire; and

• Deliver a tailored step-by-step compliance briefing, outlining clear tasks to follow in intelligible language, allowing you to bring your business in line with the DSA rapidly and accurately.

If you'd like to secure tailored DSA compliance support for your business, head on over to the DSAtoday.eu online store or drop us a line at info@dsatoday.eu for more information.

We hope this guide was useful and look forward to hearing from you!