Snap position on the DSA
Snap applauds the DSA’s intention, the desire to maintain the country of origin principle, the
clarification of the liability regime for digital service providers and the enhancement of notions of
responsibility and transparency based on risk assessment and user empowerment. While Snap
is overal supportive of the DSA proposals, we are however concerned that they may not, in their
current state, ful y achieve the ambitious objectives envisaged by the EU Commission. Snap
would therefore like to provide the key areas of concern from our perspective.
1/ The importance of strong internal market provisions
The DSA complements the country of origin principle by al owing in certain cases cross border
injunctions and requirements for one regulator to act at the behest of another. Snap applauds
the Commission's objective to facilitate exchanges among national regulators. However, this
should not compromise the consistency or integrity of the country of origin principle. It is
important to ensure that strong internal market provisions
are the basis of the instrument
(country of origin) and any derogations are kept to a bare minimum and unavoidable in nature.
There must also be strong sunset clauses to remove current and pending national legislation in
areas like content regulation.
Snap recommends establishing an explicit mechanism for determining and then
maintaining jurisdiction under a strengthened country of origin principle.
important to avoid duplication amongst national regulators, as well as the need to
avoid forum shopping.
→ Snap recommends a strong sunset clause
to remove current and pending national
legislation and regulation in areas within the coordinated field of the DSA. This wil avoid
potential duplication and/or contradiction of legal regimes.
2/ Improving the definition for “very large platform” with a qualitative approach
behind a single threshold of 45 mil ion users (10% of the EU population) seems arbitrary and
disconnected from both a platform's ecosystem and its way of working. Such a low threshold
easily met by a large number of medium sized platforms, from Europe and elsewhere, that don’t
cause any wide scale harms or bring competition concerns. Bringing such companies into the
scope of “very large platforms” could jeopardise their future development and innovation
Their subsequent lack of competitiveness
wil cement the position of a smal group of
genuinely very large, dominant market players, lessening competition and narrowing alternative
offers to European consumers.
Rather than focusing only on a single quantitative threshold number to determine the harm
caused by a given platform, the definition should be improved with qualitative criteria that
would reflect the ability of the platform to limit harmful content and would encourage
good behaviour of all platforms
large and smal .
The DSA could take inspiration from existing
good practice examples al around the world1. As a result, Snapchat suggests promoting an
would see their potential liability reduced
. This would incentivise more socially responsible
that are taking good faith steps to make their platforms safer through additional
monitoring, curation or privacy- and safety-by-design principles to significantly reduce the
volume and severity of il egal and harmful content. A commensurate reduced liability exposure
would provide the necessary legal certainty and regulatory proportionality, acting as an incentive
for companies to take proactive measures appropriate to raising safety levels on their services.
→ Snap suggests replacing the current 45m users threshold with a two stage -
quantitative and qualitative - test and to reduce liability exposure for good faith
The quantitative: minimum of 30% of the EU population consistent over
a 3 year period, with a full explanation of the methodology to
calculate the number of
(average monthly/daily active) users.
The qualitative: add a new criterion based on a company’s ability to
meet best-in-class standards in three areas: safety-by-design,
privacy-by-design, content curation and pre-moderation.
If a company
achieves high scores in these areas (to be determined by the supervising
regulatory authority and evidenced by the relative lack of harms occuring
on the platform), there wil be no need to apply additional regulatory
burden of the “very large platform” section of DSA.
3. The platforms that take the strongest mitigating good faith steps
(through additional monitoring, curation or privacy- and safety-by-design
would see their potential liability
3/ An accountability approach with more proportionality in mind
One of the most important goals of the DSA is to improve the safety of consumers in demanding
very large platforms be more transparent and drastical y limit the risks generated. This is a very
important and welcomed target. However, the DSA proposal currently fails to take the variety
of risks generated by platforms into account.
A one-size-fits-al approach assumes that the
very large platforms generate the same type and volumes of harm
, have taken similarsafety precautions up front
, have almost limitless resources
, are highly profitable
they are in some way generic and equals in the market
. These assumptions are misleading
and so it is crucial that this instrument doesn’t indirectly help to cement the dominance of a few
platform companies for years to come in Europe.
1 Australian safety-by-design code:
Canadian privacy-by-design principles (Privacy Commissioner of Ontario):
UK Information Commissioner’s Office age-appropriate-design-code:
In imposing a large number of administratively heavy constraints
on al digital service
providers targeted as very large platforms (i.e. transparency reporting, enhanced cooperation
with external public and private bodies, voluntary codes of conduct, algorithm transparency,
standards for APIs to access data. etc.), the DSA inevitably misses some of the reasons why
and how a platform may generate il egal or harmful content. To address this paradox greater
emphasis should be placed on proportionality,
in particular concerning overal administrative
burden. For al except the largest companies, these obligations wil diminish competitiveness in
the market while having minimal impact on reducing overal harms.
→ All risks
should be read with an appreciation of proportionality for scale of harms,
the size of the platform, mitigating factors to reduce harms or the underlying
business model of the platform and its approach to managing risk.
The DSA should
develop an accountability approach based on principles of appropriateness and
proportionality, as well as an appreciation for the position of smaller start up and
medium-sized challenger companies
and their importance to the vibrancy of
competition and choice of service provision to EU consumers.
4/ For a principles-based approach
Wherever possible, principles not prescriptions should be used in the DSA
prescriptive measures are needed, and more principles. The focus should be on “what” has to
be done to achieve a result, not on “how” platforms have to get there. It is important that the
proposal should describe clearly the “what” that needs to be achieved,
but as far as
possible leave the “how” to individual companies
. The reason for this is that business
models are highly differentiated and a one-size-fits-al approach wil favour the largest
companies to the detriment of smal and medium sized chal engers.
→ It is important to ensure that any approach is principles based
5/ For a clear regulatory oversight and enforcement
There is a growing concern on the increasing number of regulatory bodies
now, or soon to be,
involved in regulating digital markets (BEREC/NRAs, ERGA, EDPS, EBDS, NCAs/DGComp) as
wel as the number of service provider definitions in EU instruments that overlap and
sometimes contradict one another
(ISSP, OCSSP, ODPS, VSP, ECS, ICS, NIICS, now VLP).
Relatedly, the interplay of DSA and existing EU instruments
(e.g. AVMS Directive, Copyright
Directive, EECC, eCommerce Directive, etc) should be made much clearer. Again, al this
complexity and uncertainty can be accommodated by the very largest companies, but not by
smal er competitors. Regulatory complexity, just like prescription and derogations from country
of origin rules, creates nothing but a competitive advantage for a very smal number of elite
The Commission should provide guidance for companies that are covered by different
regulations and regulators (BEREC, ERGA, EBDS...). The confusion of scopes and definitions
— which is currently spreading in the institutional space — leads to confusion, and ultimately
uncompetitiveness, for smal er, chal enger service providers and their users.
Snap encourages the Commission to avoid creating duplicate requirements for
Platform-to-business Regulation; EECC, Copyright Directive, etc). The Commission
should provide clear guidance for those companies that now seem to be covered
by multiple EU level instruments and multiple regulatory authorities
BEREC, ERGA, EBDS, etc).