Digital Services Act ("DSA")

The Regulation on digital services, or Digital Services Act, is Regulation (EU) 2022/2065 of the European Parliament and of the Council on a Single Market for Digital Services. Fully applicable since 17 February 2024, it takes over and modernises the intermediary liability regime derived from Directive 2000/31/EC on electronic commerce and imposes on providers of intermediary services due diligence obligations graduated according to their nature and size. For intellectual property right holders, it sets the framework for notice and removal mechanisms for infringing content.

Scope and categories of providers

The Regulation applies to intermediary services offered to recipients established or located in the Union, irrespective of where the provider is established. It distinguishes mere conduit, caching and hosting services, then, among hosting services, online platforms, and lastly very large online platforms and very large online search engines, designated by the Commission once they reach forty-five million monthly active recipients in the Union. The obligations increase at each level. In France, ARCOM is the Digital Services Coordinator.

Rules of interest to intellectual property

The Regulation retains the conditional exemption from hosting provider liability and the prohibition of general monitoring obligations, and specifies that carrying out voluntary own-initiative investigations in good faith does not cause the exemption to be lost. It harmonises notice and takedown mechanisms, requires reasons to be given for removal decisions and an internal complaint-handling system, creates the status of trusted flagger whose notices are processed with priority, and obliges platforms to suspend users who frequently provide manifestly illegal content. Marketplaces must collect and verify the identity and contact details of the traders they host, a so-called traceability obligation that makes it easier to identify sellers of infringing products. Very large platforms assess and mitigate systemic risks, including the dissemination of infringing content.

Interaction with other instruments

The Regulation does not alter the substantive rules of copyright and leaves intact the special regime of Directive (EU) 2019/790 for online content-sharing service providers, which prevails as a special rule. Court injunctions for blocking and delisting based on the French Intellectual Property Code remain available. Administrative fines may reach six per cent of the provider’s worldwide annual turnover.

Key points

Since 2024 the Digital Services Act has set the obligations of online intermediaries, from the mere hosting provider to very large platforms, and harmonised the handling of notices of illegal content. For right holders, it offers standardised notices, trusted flagger status and traceability of professional sellers. Adapt notice procedures to the formal requirements of the Regulation and document repeated infringements in order to obtain the suspension of repeat infringers’ accounts.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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