lecture 8 Flashcards
Goal(s) - GDPR
Transparency
* Restrict supensions/terminations of business relations
* Internal Complaint Handling System
* Actions by Representative Organisations („Class Litigation“)
* ‘online intermediation services’ means services which meet all of the following requirements:
◦ they constitute information society services within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (12);
◦ they allow business users to offer goods or services to consumers, with a view to facilitating the initiating of direct transactions between those business users and consumers, irrespective
of where those transactions are ultimately concluded;
◦ they are provided to business users on the basis of contractual relationships between the provider of those services and business users which offer goods or services to consumers;
Art. 2 (11)
‘ancillary goods and services’ means goods
and services offered to the consumer prior to
the completion of a transaction initiated on
the online intermediation services in addition
to and complementary to the primary good or
service offered by the business user through
the online intermediation services;
Ranking (Article 5)
- Providers of online intermediation services shall set out in their terms and conditions the main
parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters. - Providers of online search engines shall set out the main parameters, which individually or collectively are most significant in determining ranking and the relative importance of those main
parameters, by providing an easily and publicly available description, drafted in plain and
intelligible language, on the online search engines of those providers. They shall keep that
description up to date. - Where the main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by business users or corporate website users to the respective
provider, that provider shall also set out a description of those possibilities and of the effects of
such remuneration on ranking in accordance with the requirements set out in paragraphs 1 and 2. - Where a provider of an online search engine has altered the ranking order in a specific case or delisted a particular
website following a third party notification, the provider shall offer the possibility for the corporate website user to
inspect the contents of the notification. - The descriptions referred to in paragraphs 1, 2 and 3 shall be sufficient to enable the business users or corporate
website users to obtain an adequate understanding of whether, and if so how and to what extent, the ranking mechanism takes account of the following:
a) the characteristics of the goods and services offered to consumers through the online intermediation services or the online search engine;
b) the relevance of those characteristics for those consumers;
c) as regards online search engines, the design characteristics of the website used by corporate website users. - Providers of online intermediation services and providers of online search engines shall, when complying with the
requirements of this Article, not be required to disclose algorithms or any information that, with reasonable certainty, would result in the enabling of deception of consumers or consumer harm through the manipulation of search results. This Article shall be without prejudice to Directive (EU) 2016/943 (Business Secrets Directive). - To facilitate the compliance of providers of online intermediation services and providers of online search engines
with and the enforcement of the requirements of this Article, the Commission shall accompany the transparency
requirements set out in this Article with guidelines.
Differentiated Treatment
- Providers of online intermediation services shall include in their terms and
conditions a description of any differentiated treatment which they give,
or might give, in relation to goods or services offered to consumers
through those online intermediation services by, on the one hand, either
that provider itself or any business users which that provider controls and,
on the other hand, other business users. That description shall refer to the
main economic, commercial or legal considerations for such
differentiated treatment.
Access to data
- Article 9 !
- Providers of online intermediation services shall include in their terms
and conditions a description of the technical and contractual access, or
absence thereof, of business users to any personal data or other data, or
both, which business users or consumers provide for the use of the online
intermediation services concerned or which are generated through the
provision of those services.
Report
„This wide divergence in the number of complaints and their outcomes (12
complaints for Apple with only two overturned, and more than 3 million
complaints for Google with 26% overturned) suggests that providers of
online intermediation services have very different interpretations of the
notion of complaint and that some are possibly not complying with this
obligation.”
And now: DSA
Regulation (EU) 2022/2065 of the European Parliament and of the Council of
19 October 2022 on a Single Market For Digital Services and amending
Directive 2000/31/EC (Digital Services Act) (Text with EEA relevance)
Scope - DSA
To be applied whenever there is a substantial Connection with the EU
such as
◦ establishment in the Union
◦ number of recipients of the service in one or more Member States is
significant in relation to the population thereof
◦ targeting of activities towards one or more Member States
Recital 61 - DSA
Action against illegal content can be taken more quickly and reliably where providers of
online platforms take the necessary measures to ensure that notices submitted by trusted
flaggers, acting within their designated area of expertise, through the notice and action
mechanisms required by this Regulation are treated with priority, without prejudice to the
requirement to process and decide upon all notices submitted under those mechanisms in a
timely, diligent and non-arbitrary manner
Article 33 DSA
Very large online platforms and very large online search engines
1. This Section shall apply to online platforms and online search engines
which have a number of average monthly active recipients of the service in
the Union equal to or higher than 45 million, and which are designated as
very large online platforms or very large online search engines pursuant to
paragraph 4.
All Intermediary Services
- designating a signle point of contact
- if necessary, designationg a legal representative
- modifying the terms & conditions
- anticipating transparency reports
- cooperating w national authorities following orders
Hosting providers (in addition)
- adapting the notice and action mechanism
- anticipating the obligation to provide information to users
- anticipating the reporting of criminal offence suspicions
Marketplaces
- traceability of traders
- compliance by design
- right to information
Online Platforms
- adapting the content moderation system
- anticipating the prohibition of dark pattens
- respecting the ban of certain types of targeted advertising
- anticipating obligations relating to advertise and recommender system transparency
Platform Liabilty
- Art. 4 et seq.
- Known principles remain
Article 6
Hosting
1. Where an information society service is provided that consists of the storage of information provided by a
recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that the provider:
a. does not have actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal content is apparent; or
b. upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the
illegal content.
4. This Article shall not affect the possibility for a judicial or administrative authority, in accordance with a
Member State’s legal system, to require the service provider to terminate or prevent an infringement.
Voluntary Monitoring is OK
Art. 7
- „Providers of intermediary services shall not be deemed ineligible for the
exemptions from liability referred to in Articles 4, 5 and 6 solely because
they, in good faith and in a diligent manner, carry out voluntary owninitiative investigations into, …”
Article 8
No general monitoring or active fact-finding obligations
No general obligation to monitor the information which providers of
intermediary services transmit or store, nor actively to seek facts or
circumstances indicating illegal activity shall be imposed on those
providers.
Art. 22 DSA -
Trusted flaggers
- Providers of online platforms shall take the necessary technical and organisational measures
to ensure that notices submitted by trusted flaggers, acting within their designated area of expertise, through the mechanisms referred to in Article 16, are given priority and are processed and decided upon without undue delay. - The status of ‘trusted flagger’ under this Regulation shall be awarded, upon application by any
entity, by the Digital Services Coordinator of the Member State in which the applicant is established, to an applicant that has demonstrated that it meets all of the following conditions:
(a) it has particular expertise and competence for the purposes of detecting, identifying and notifying illegal content;
(b) it is independent from any provider of online platforms;
(c) it carries out its activities for the purposes of submitting notices diligently, accurately and objectively.
Very Large Online Platforms
- Risk assessment (Art. 34)
- Mitigation of risks (Art. 35) * Crisis Response Mechanism (Art. 36)
- Independent Audit (Art. 37) * Online Advertising Transparency (Art. 39)
- Data Access and Scrutiny (Art. 40)
- Compliance (officer), Art. 41
- Transparency Reporting Obligations (Art. 42)
- Supervisory Fee (Art. 43)
Penalties
(Art. 52)
„Member States shall ensure that the maximum amount of fines that may
be imposed for a failure to comply with an obligation laid down in this
Regulation shall be 6 % of the annual worldwide turnover of the provider of
intermediary services concerned in the preceding financial year.
Member States shall ensure that the maximum amount of the fine that may
be imposed for the supply of incorrect, incomplete or misleading
information, failure to reply or rectify incorrect, incomplete or misleading
information and failure to submit to an inspection shall be 1 % of the
annual income or worldwide turnover of the provider of intermediary
services or person concerned in the preceding financial year.”
