On 15.12.2020, the European Commission (“Commission”) submitted the proposal of the drafts of the Digital Services Act (“DSA”) and the Digital Markets Act (“DMA”).
More specific and additional obligations are imposed on very large online platforms with the DSA. In accordance with the regulations within the scope of the DSA, all online intermediaries offering their services in the single market, regardless of whether they are in the European Union (“EU”), are obliged to comply with the new rules. The DSA also imposes clear obligations on internet operators regarding user complaints against illegal acts.
Within the scope of the DMA, the aim is to adapt the competition rules in to the digital sector. The DMA prohibits EU Member States from enforcing their own laws or regulations on “gatekeeper” platforms that go beyond the DMA. The draft introduces the concept of “Gatekeeper”. Gatekeeper and their platforms can be defined as: “Very large organizations that control “core services” such as search engines, social network services, certain messaging services, operating systems, and online brokerage services. technology companies…”. These companies are appointed by the decision of the Commission and this appointment imposes a set of behavioral obligations for the appointed online service provider. Both proposals shall be directly implemented across the EU if adopted.
Some important issues regulated under the DSA are as follows:
Regardless of the category of service offered, it is a common obligation for all service providers to provide a transparent and secure online environment.
- It is a common obligation for all service providers to comply with the decision to remove the content due to illegal content given by the courts of Member States or Authorities.
- Service providers that do not have an establishment in the EU are required to appoint a legal representative, in one of the Member States.
- Liability for exemption and conditions for exemption have been determined.
- General monitoring or active information collecting obligations for online intermediary service providers shall be no longer prohibited, and online intermediary service providers shall act against illegal content.
- Within the scope of user complaints, obligation to take immediate action upon complaints has been imposed. (Notice and Action system)
- Regarding online advertising, transparency obligations have been regulated for online platforms.
- Additional obligations are placed on “very large online platforms” to manage systemic risks.
Some important issues regulated under the DMA are as follows:
- Provided that it does not affect the operability of the respective operating system or device, if users wish to uninstall the applications that have originally come with their devices, such uninstallation will be permitted.
- Gatekeepers shall be prohibited from competing with the business users using the data collected from business users.
- The DMA prohibits gatekeepers from imposing the obligation to become a member in order to use services other than the main platform service regarding business users and end users.
- Gatekeepers shall be prohibited from restricting users’ access to services acquired outside of the gatekeeper platform.
- Gatekeepers shall not prevent access to third-party application stores that compete with their own applications. However, gatekeepers shall limit the ability of these applications to interfere with “the integrity of the hardware or operating system.”.
- Gatekeepers shall observe a fair and non-discriminatory method among users when accepting business users into the application store.
- Gatekeepers shall be prohibited from mixing the data they collect from their customers with data from data brokers or business users. Gatekeepers shall also be prohibited from directly (without pre-approval) registering users in additional services.
- The penalties shall be determined by the Member States so as not to exceed 6% of the global turnover in the case of the DSA and 10% of the global turnover in the case of the DMA.
- In terms of violations of secondary obligations such as not responding to the information and document requests of the Commission in due time, providing incorrect and misleading information, or not meeting the database access requests of the Commission as it should be, undertakings may be fined not exceeding 1% of their annual turnover.
- The Commission reserves the right to impose fines on very large online platforms apart from the regulations of the member states, up to 6% of their turnover.
- If a violation decision is issued about a gatekeeper’s company three times by the Commission, it will be considered as a systematic violation and behavioral and structural measures may be taken.