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.
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”.
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.)