The EU Digital Services Act (“DSA”) will start applying from February 17, 2024 to a broad array of intermediary services offered in the EU, including online marketplaces, web-hosting services, cloud services, search engines, and social media platforms.  The DSA will require these providers to include certain information in their existing terms and conditions (“T&Cs”).  We set out below an overview of the chief changes providers will need to make to their T&Cs in light of the DSA.

(For a general overview of the DSA, its scope of application and obligations, see our previous blog posts here, here and here).

EU consumer law already requires providers to include a minimum set of information in their T&Cs.  The DSA information requirement complements this obligation and, in particular, requires information about:

  • the type of content users are prohibited from uploading to the digital service (e.g., online platform) or the circumstances under which content may be removed from the service; and
  • the policies, procedures, measures, and tools used for content moderation purposes (e.g., algorithmic decision-making and human review).

EU consumer protection authorities presently require providers to specify in their T&Cs that said providers may remove user content that violates the T&Cs and identify the type of user content that may be removed. Providers must also inform consumers that their content was removed, when that happens.  The DSA complements consumer protection laws by requiring that providers inform any affected user or recipient of the service about the reasons for removing user content.  The same applies with regards to the suspension or termination of the provision of services to the relevant user’s account.

EU consumer authorities also now require organizations to inform consumers that they have a right to appeal the provider’s content removal decision.  The DSA complements consumer protection laws by requiring that providers inform recipients of the service about their options for seeking redress when content is removed from the platform, e.g., through internal complaint-handling mechanisms, or out-of-court dispute settlement and judicial redress procedures.  The DSA also requires providing specific information about how complaints are addressed through the internal complaint-handling mechanism.

The DSA requires providers to inform recipients of the service of any significant change to the terms and conditions.  This obligation is less burdensome than under the EU Consumer Rights Directive, which requires providers to notify consumers of any changes made to T&Cs (material or not) and obtain consumer consent to such changes for the contract to remain valid.

In addition to the above, as of August 25, 2023, VLOPs/VLOSEs were already required to comply with a number of obligations, including but not limited to the following:

  • providing a summary of their T&Cs in a clear, concise, and unambiguous language, including information on available remedies and redress mechanisms; and
  • providing access to the T&Cs in the official languages of all the Member States in which they offer their services.

On December 1, 2023, the European Commission released a new database to track the T&Cs of online platforms, in particular social media, app stores and marketplaces. This database will complement the Transparency Database, which includes all content moderation decisions of online platforms, in line with the transparency requirements introduced in the DSA, such as “providing an easily understandable, plain-language summary of their terms and conditions, in the languages of the Member States where they operate”.

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The Covington team will keep monitoring developments in relation to the DSA and consumer protection laws at the EU and national Member State level and is happy to assist with any inquiries on the topic.

(This blog post was drafted with the contribution of Diane Valat.)

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 Privacy International and the European security agency, ENISA.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.