The Digital Services Act, the EU’s sweeping new regulations for online intermediaries and platforms, came into full effect Saturday. The preparatory phases are done and the Digital Services Act will apply, in its entirety, to businesses including search engines, video sites, app stores, online marketplaces, travel and accommodation sites and social media platforms.
The Act’s intent is to ensure better online safety and protections by requiring greater oversight of and transparency from digital service providers. While its most publicised aspect is to offer stronger protection to children, it also targets the problem of disinformation, illegal content and other “societal harms”. Its broad scope means it will have significant impact on online businesses and their users, on researchers studying the platforms and on society.
For the past six months, the Digital Services Act applied only to designated very large online platforms with over 45 million users monthly in the EU. Now, it affects smaller businesses too. In Ireland, that means probably hundreds of organisations come under its remit, many of which may be unaware because, unlike tech giants, they don’t have policy and legal teams keeping abreast of such developments.
They have not had the money and the resources to prepare as well and for as long. They have not had the resources to build relationships with the commission, with regulators at the national level
— Dr Julian Jaursch
Dr Julian Jaursch, policy director for policy and platform regulation at German think tank Stiftung Neue Verantwortung, says smaller platforms have millions of users combined, but will have more challenges in complying with the Act.
“They have not had the money and the resources to prepare as well and for as long. They have not had the resources to build relationships with the commission, with regulators at the national level. So this could actually be an area where we might see more changes … services might change, transparency obligations might change for the smaller platforms ... This is something to watch.”
During a recent media briefing, he noted much remains unclear about the details of the Digital Services Act and how it will work. That’s due to its split structure, with the European Commission responsible for some oversight, primarily around assessing and managing risk; and individual member states, which must determine the Act’s application and enforcement in their country via a designated national regulator, a Digital Services Coordinator . The coordinators must make politically and socially tricky decisions on defining and regulating illegal or restricted content. Ireland’s Digital Services Coordinator is the Coimisiún na Meán.
Resolving “this potential tension between the rules on illegal content that are in place for all platforms based on national law, and the rules on systemic risk that are in place for the very large online platforms and determined by the European Commission … will take some time for us to figure that out.”
Jaursch noted that Ireland is ahead of most EU states now in having a functioning, staffed regulator. He said that, as with enforcement of the GDPR, Ireland would have an outsize EU role because so many big platforms are based in Ireland. In determining national Digital Services Act regulations for content and enforcement, Ireland is functionally determining them for the entire European Union.
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He expects national regulators “to focus on the platforms within their member states first, and Ireland and the Commission to focus on the bigger ones first.” In Ireland, the fact that Coimisiún na Meán is already up and running provides “promising signs that there is a big push, a big impetus to work on this. But, of course, how this will work out in practice will have to be seen over the next couple of months and probably years.”
Referencing the controversy surrounding Ireland’s role as lead regulator for the GDPR – the Data Protection Commission here has been criticised for moving too slowly and a number of its fines have been challenged by other EU member states – Jaursch said there’s a “risk of Ireland being a bottleneck again. But also, at the same time, the opportunity if the Irish regulator actually works really well … there could be actually a huge benefit to all other regulators as well. So, how that plays out, I think, is one of the key things to watch for the governance and oversight structure of the DSA.”
While it is promising that the Government recognised Ireland’s large Digital Service Act obligations and responsibilities by ensuring Coimisiún na Meán was up and running well before February 17th, it remains deeply concerning that oversight of the Digital Services Act is not its stand-alone function, as is the GDPR for the Data Protection Commission. Coimisiún na Meán also must regulate the entire broadcasting sector.
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And, TDs seem to have no end of other ideas for tasks that could be given to Coimisiún na Meán. It’s been proposed that Coimisiún na Meán could oversee funding structures for RTÉ, and other random proposals have surfaced before too.
Coimisiún na Meán has provoked other concerns. Many digital rights experts were startled when it publicly floated proposals for children’s online safety that have been studied and rejected as noncompliant with GDPR and general human rights protections, by other national regulators.
Ireland has an opportunity to be the Digital Services Act’s model regulator. But some chances have already been squandered. The state failed to recognise the importance of the role by creating a stand-alone regulator, and Coimisiún na Meán has fumbled in coming across as underinformed about the very rights it is supposed to protect, for everyone, not just children.
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