In a previous article on our website, we have already explained:

  • what is DSA (Digital Services Act, abbreviated in Polish as “AUC“),
  • for what purpose it was introduced,
  • who is obliged to use it?

However, in the article you are currently reading, we will indicate what main obligations and sanctions the EU DSA regulation imposes on entrepreneurs conducting business on the Internet, but we will limit ourselves to the most important issues due to the extensiveness of the regulation itself, which has as many as 102 pages and the multitude of those already available in detailed studies in this area.

And here, in order to indicate the obligations imposed on entrepreneurs in the e-commerce industry, it is worth mentioning that the regulation has only entered into force (in the first stage, from August 25, 2023, large platforms (VLOP) and internet search engines (VLOSE)), and already one of them, in the autumn of 2023, proceedings were initiated by the European Commission.

We’re talking about TikTok here!

European Commission proceedings have been initiated against Tik Tok in areas related to:

  • protection of minors,
  • transparency of advertising,
  • scientists’ access to data,
  • managing the risks associated with addictive design and harmful content.

Following the fate of this first large-scale proceeding initiated under the DSA against the VLOP platform, which is TikTok in accordance with the Commission’s decision, may prove to be a good lesson for entrepreneurs operating on the Internet in terms of what activities will be assessed by the supervisory authorities as contrary to the DSA and what to avoid!

What obligations does the DSA introduce towards entrepreneurs?

It is impossible to list all the obligations arising from the DSA regulation here, which for simplicity can be found, among others,: in official studies available on the websites of European Union bodies. Above, using the example of proceedings against TikTok, some of the obligations of entrepreneurs have been outlined, which is intended to serve the safety of users.

The most important obligations introduced by the EU regulation in the case of entrepreneurs who are micro-entrepreneurs and small entrepreneurs operating on the basis of hosting services or an online platform are:

  1. designating a contact point enabling service recipients to communicate directly and quickly with the supplier, electronically, in a user-friendly manner (Articles 11-12 DSA);
  2. appointing a representative if you are based outside the EU (Article 13 DSA);
  3. adapting the terms of service provision in the regulations by specifying the rules regarding (Article 14 of the DSA):
      • restrictions on the use of the service, e.g. in the event of the publication of unacceptable content by users,
      • indication of what content the provider classifies as inconsistent with the terms of use of the website and its services,
      • rules for content moderation (e.g. comments or opinions in an online store or application such as refusal to publish, removal of content, or restrictions on the use of the service or user account),
      • indication of the restrictions that the provider imposes on the user if the user provides illegal content,
      • algorithmic decision-making mechanisms (e.g. in the case of user content containing profanity),
      • changes to the terms of use of services on your website;

4. implementing a mechanism for reporting illegal content;

5. defining the procedure for users to appeal against your decisions;

6. preparing to cooperate with state authorities regarding illegal content;

7. providing certain information at the request of the digital services coordinator – if you provide an online platform service.

It is also important that in the case of services addressed to minors, the conditions for their provision must be prepared in a manner adapted to the age of minors and understandable to them.

Additionally, it is worth paying attention to the obligations arising from the DSA regulation regarding:

1) transparency of online advertising (Article 26(1) of the DSA);

2) transparency of commercial information (Article 26(2) of the DSA);

3) prohibition of advertising based on profiling of sensitive data (Article 26(3) of the DSA);

4) prohibition of targeted advertising based on profiling data of minors (Article 28(2) of the DSA).

In practice, you may encounter the greatest difficulties at the stage of assessing whether you are subject to the DSA regulation and to what extent. For this purpose, you should first of all assess whether, in the light of this regulation, you are a hosting provider, e.g. running a blog as a minor and only secondary activity related to another main service provided by you, or whether you are already an online platform because, for example, you store comments in a social network. For this purpose, it is worth using professional legal assistance so as not to expose yourself to sanctions for not applying the DSA regulation at all or for incorrectly applying it as part of your business activities in the virtual network.

Is it necessary to adapt the regulations for the provision of electronic services to DSA?

Yes, but only if a given service provided electronically qualifies as an indirect service within the meaning of DSA in accordance with Art. 3 letter g) DSA.

If you already operate in the industry, you may have already regulated many of the previously indicated issues in your current regulations for the provision of electronic services, and now you just need to review them and adapt the regulations or change the missing elements resulting from the DSA regulation. If you haven’t done it yet, it’s high time to update the regulations!

If you are just planning to start an online business, remember to prepare such regulations not only in accordance with the Act on the provision of electronic services but also with the DSA regulation and other provisions of applicable law in this area!

This information should be presented to website users in a clear, simple, understandable, and unambiguous manner. Additionally, such information should be made publicly available in an easily accessible and machine-readable format on a website, social networking site, or application.

What are the penalties for failing to comply with the DSA?

The regulation provides for a fine of up to 6% of the annual worldwide turnover of the provider of indirect services in the previous financial year for failure to comply with the obligations imposed by the DSA on entrepreneurs. The regulation provides for other sanctions, including periodic fines.

Does Poland need to adapt its national laws to DSA requirements?

In January 2024, the Polish Ministry of Digitization conducted public consultations on the draft act implementing DSA. The Act of July 18, 2002, on the provision of electronic services and the Act of July 16, 2004, on Telecommunications Law will be amended.

As part of these changes, procedures will be introduced that will enable the effective implementation of the rights arising from the AUC. Moreover, the changes assume that the President of the Office of Electronic Communications will also act as the Coordinator for Digital Services. And it is this national authority, responsible for supervising providers of indirect services, that will be entitled to apply sanctions against entities obliged to comply with the requirements of the DSA Regulation.

Until appropriate national regulations are adopted, it is not possible to enforce liability for violations of DSA provisions from entrepreneurs subject to the supervision of national authorities!

To sum up, the topic of the DSA regulation, looking at the wide and detailed scope of requirements introduced by the DSA regulation, it is worth considering using professional legal assistance in adapting to the DSA requirements and entrusting a person designated in your company with the responsibility of supervising the content that will be on the entrepreneur’s website. Sanctions for violating these requirements are severe and we can expect that the national authority authorized to do so will use them, especially since this content will be generally available on the website of every online store or social networking site for both users, national authorities, and for your competitors!

This is even more certain when looking at the previously mentioned example of Tik Tok!

Moreover, in the coming years, we can expect an increasing scope of regulations and requirements imposed on entrepreneurs operating in the e-commerce industry, which should not come as a surprise considering the ongoing development of technology and the widespread availability of services provided in the virtual world. This is in our own interest because the goal should be to ensure security and clear and fair conditions for everyone to use the Internet.

If you run your own company, one of your basic activities should be constant monitoring of applicable law! Thanks to this, you will conduct your business in accordance with applicable legal requirements, minimize the severe risk of fines or other sanctions being applied by authorized authorities, and avoid the need to terminate your business in this area. 

So the stake in this game is your to-be or not to be!

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