On November 25, 2021, the Council of the European Union reached an agreement on the draft Digital Services Act (“DSA”) (see here and here) and the Digital Markets Act (“DMA”) (see here) bringing them one step closer to adoption.  The European Parliament will discuss the drafts on December 9 and plans to announce its first reading position in early 2022, after which the Council and the Parliament will enter into negotiations with the goal of reaching an agreement on a final text for both acts.

The acts lay down rules for intermediary service providers (e.g., Internet access providers, cloud providers, search engines, social networks, and online marketplaces) covering areas such as:

  • liability of mere conduit, caching and hosting services;
  • content moderation;
  • transparency of services and electronic communications;
  • transparency of online advertising;
  • openness and interoperability of the services to businesses and consumers; and
  • fair competition between service providers.

If you like to receive an overview of the  draft DSA and DMA, as well as a short explanation of the sanctions regime in the event of a breach, please let us know.

Significantly, on November 18, the European Data Protection Board issued a related statement (see here).  In that statement, the Board identified three main lingering concerns with respect to the DSA: (1) lack of protection of individuals’ fundamental rights and freedoms; (2) fragmented supervision by competent regulatory authorities; and (3) the risk of inconsistencies between the DSA and EU data protection law.  The Council’s reactions to these recommendations have yet to be published.

We will continue to monitor and report on the legislative process of the DSA and DMA.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as the IAPP’s European Advisory Board, Privacy International and the European security agency, ENISA.

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Photo of Anna Sophia Oberschelp de Meneses Anna Sophia Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act…

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act, the European Health Data Space, and EU consumer protection law, including product safety, product liability, and consumer rights legislation. She focuses on the operational side of compliance — helping clients design policies and processes, draft documentation, and build the internal frameworks needed to meet regulatory requirements in practice.

She also advises on contentious matters, drawing on experience managing investigations before national regulators and proceedings before national courts and the Court of Justice of the European Union. She works closely with Covington’s disputes teams on matters at the intersection of regulatory compliance and litigation.

Read more about Anna Sophia Oberschelp de MenesesAnna Sophia's Linkedin Profile
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