Poland: Important for online platforms: enforcement of the DSA in practice

 

The Digital Services Act (DSA) introduces new rules for online platforms to protect users and increase online security. By February 2024, all EU countries, including Poland, had to fully implement these regulations, which will significantly affect the activities of providers of indirect services. In this article, we discuss the key obligations imposed by the DSA, the European Commission's actions towards the largest platforms and the state of Polish preparations for the application of the regulation. If you want to find out how these changes will affect the online landscape, we invite you to read on!

The Digital Services Act (DSA) is a regulation of the European Parliament and of the Council ("EU") that came into force on November 16, 2023, and should be fully applicable in all EU member states from February 17, 2024.

Its main objective is to provide a safer online environment that will strengthen the protection of users' rights, m.in. limiting the possibility of aggressive marketing based on profiling.

We have provided a detailed discussion of the main obligations under the DSA and the entities to which the Regulation applies in the previous article – we encourage you to read Transparent advertising according to the DSA – what does it mean for your product on the Internet? .

This time we discuss the use of mechanisms by the European Commission and national authorities to supervise the implementation of the DSA.

How do the Commission and DSC enforce the Regulation?

The regulation gives the Commission and the National Digital Services Coordinators (DSCs) extensive enforcement powers.

The Commission has the power to request information from platform owners, to carry out checks on whether to implement interim measures, and to impose sanctions. National coordinators have powers comparable to those of the Commission over providers of indirect services on their territory, but they must act in accordance with the guidelines of the DSA, which are also governed by national law.

Depending on the type of violation, fines can range from 1% to 6% of the supplier's annual turnover, and in addition, the Commission and DSC can impose periodic fines for persistent non-compliance.

Over the past year and this year, the Commission has been very active, issuing dozens of requests for information and launching formal investigations (including against AliExpress, TikTok, Meta, and Temu), as well as publishing the first findings on a potential breach of the DSA by platform X (concerning, m.in the transparency of advertisements and so-called dark patterns). The Commission also demanded that TikTok permanently withdraw from the EU the "TikTok Lite" rewards program, which was found to be incompatible with the provisions of the Regulation.

No less initiative is shown by some national coordinators, such as the Irish Coimisiún na Meán, which has sent dozens of requests for information to both branches of the largest entities registered on the island (e.g. Meta) and smaller portals.

The Commission's key areas of focus so far have included:

• Ad transparency, including ad repositories;
• the adequacy of risk assessments, including in relation to the risks associated with generative AI;
• safety of minors, especially with regard to the potentially addictive features available on the portals;
• the operation and transparency of recommendation systems, in particular with regard to dark patterns.

Proceedings against the largest platforms may become a model for national coordinators in supervising the implementation of DSAs by smaller providers of indirect services.

And what does the implementation of DSA in Poland look like?

Currently, work is underway on a draft act amending the Act on the provision of electronic services and certain other acts, which is to adapt Polish law to the requirements of the DSA.

According to the assumptions of the draft, the function of the coordinator for digital services will be taken over by the President of the Office of Electronic Communications in cooperation with the President of the Office of Competition and Consumer Protection.

Smaller providers of indirect services operating on the Polish market, which have delayed the implementation of the DSA, therefore have the last chance to adapt to the requirements of the Regulation before the start of activities by the Polish coordinator, who will certainly strive to catch up with the backlog in the field of compliance control with EU regulations.

 

For further information, contact:

Mateusz Reiss, Trainee Lawyer

Gorazda, Świstuń, Wątroba i Partnerzy adwokaci i radcowie prawni, Kraków

e: mateusz.reiss@gsw.com.pl

 

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