Nordic comments to the Digital Services Act
The Nordic confederations: Confederation of Danish Industry, Confederation of Swedish Enterprises, and the
Confederation of Finnish Industries have in collaboration the following main messages on the Digital Services
• We emphasize the importance of achieving rules that are proportionate and - as far as possible - princi-
ple-based and technology-neutral. This is crucial for ensuring predictability, encouraging innovative
power and creating a positive investment climate.
• We strongly support restricting the DSA to illegal content.
• We support the DSA to apply the Country of Origin principle.
• We support upholding the country-of-origin principle and welcome enhanced coordination and cooper-
ation across the EU, as this will ensure consistent application of the DSA and its core principles in all
• We support the proposal of maintaining the existing exemptions from liability of the e-Commerce Di-
rective. However, in the upcoming negotiations, we encourage the negotiating parties to discuss ex ante
obligations for online marketplaces, where it allows consumers to conclude distance contracts regarding
dangerous goods with traders.
• We welcome the DSA to encourage the important proactive work on countering the existence of illegal
• We encourage sufficient funding to strengthen the market surveillance authorities to keep online and
offline markets safe.
• We welcome the DSA to apply exterritorial.
• We ask for clarification regarding extraterritorial enforcement power. We also need a better understand-
ing of the scope of the DSA as well as the transparency requirements.
Starting point for our comments
We welcome harmonizing rules to combat illegal content online and countering fragmentation of the internal
market. We also support rules that build on the existing liability regime of the e-Commerce Directive. Digital
platforms should be exempted from liability, as long they meet certain conditions.
As there is no one size fits all
approach the conditions must differ between different types of service providers
and they must - as far as possible – be principle-based and technology-neutral. This is crucial for ensuring
predictability, encouraging innovative power and creating a positive investment climate.
In addition, the conditions must be proportionate if they are to achieve their desired effect. They must not
undermine the overall business models of the services, given the broad positive impact and the opportunities
and incentives for innovation that they bring.
Illegal, but not harmful, content is covered
The definition of illegal content in article 2 includes all information that does not comply with EU law or the
law of a Member State. We strongly support that the DSA is restricted to counteracting illegal content, to
resolve the major societal damage such content may cause. Counteracting the presence of legal but harmful
content online is better handled through other regulatory strategies.
Maintenance of the Country of Origin Principle
We support upholding the Country of Origin principle (article 3(2) of the eCommerce Directive). If anything,
this should be strengthened to ensure the single market functions correctly. However, Member States have
diverged from this principle in practice and frequently used the derogations available to them (article 3(4) of
the eCommerce Directive). Aside from the fact that each Member State can exempt national rules, there is,
in practice, no agreement in the EU on the interpretation of the Country of Origin principle. Some Member
States, like Denmark, interpret the principle in a way that it only pertains to public law, whereas other Mem-
ber States interpret the principle as also pertaining to civil law in several areas. The principle is therefore
difficult for some companies to navigate by and it gives rise to great uncertainty.
This is fragmenting the single market and treating online business models differently. Ultimately, the best
way to ensure the effectiveness of single market legislation is to strengthen the cooperation between Mem-
ber States. We therefore welcome enhanced coordination and cooperation across the EU.
We also ask for the Commission to monitor more closely how the Country of Origin principle is being applied
in practice and whether derogations are indeed proportionate to achieve Member State public interest aims.
Hence, it is important that the European Board for Digital Services ensures consistent application of the DSA
and its core principles. The interpretation of the Country of Origin principle should therefore be added to the
activity reporting of article 44.
Online marketplaces facilitating the sale of dangerous goods to consumers
Each year illegal goods are sold to consumers through an online marketplace without having a market actor
to hold responsible. This negatively affects the internal market, competition and exposes consumers to a high
risk. The proposed safeguards in the DSA do not effectively protect consumers against this issue as they take
place after the illegal goods have been sold.
Therefore, we find it important to address this issue before the goods are placed on the European market
and sold. In the upcoming negotiations, we encourage the co-legislators to discuss the need for introducing
an obligation to monitor for online marketplaces, where it allows consumers to conclude distance contracts
with traders regarding dangerous goods .This will account for incidences such as the sale of goods between
a seller in a 3rd country and a consumer in the EU, and where there is no other manufacturer or importer in
EU. Moreover, such extended responsibility should only apply to situations where the product is covered by
the regulation listed in article 4(5) in the Market Surveillance Regulation (MSR). This ‘sector-specific legisla-
tion’ covers 18 regulations for example the safety of toys, electrical equipment, radio equipment and gas
The extended responsibility must be enforced without harming innovation and development of the platform
economy. And the extended responsibility should only be upheld in terms of the DSA regulation as we agree
with the current limited liability schemes and with the proposal above, we don’t want to address civil liability.
Fines should be proportionate and the DSA should make clear what constitutes a violation.
Strengthening market surveillance
We welcome the DSA to encourage service providers to act more proactively to counteract the existence of
illegal content. Also, as described above, additional due diligence obligations are relevant for online market-
places to reduce the sale of illegal goods to consumers. Nonetheless, it is the market surveillance authorities
and not private actors that bear the prior responsibility for detecting and combating illegality online. How-
ever, many market surveillance authorities and other regulators involved with keeping online and offline
markets safe are grossly under resourced. Therefore, we urge Member States to uphold their political
intentions and sufficiently fund the respective authorities and regulators responsible for enforcing existing
frameworks and the DSA.
We support a horizontal regulatory framework that will also apply to the providers of digital services, who
are not established in the EU but offer services that reach the internal market. We also support the introduc-
tion of a requirement for these digital service providers to have a legal representative within the EU (article
11), to facilitate extraterritorial and enforcement issues.
The enforcement possibilities against digital service providers that are not established in the EU must
be clarified. It must further be specified to which extent the legal representative’s liability in the EU
differs from/coincides with the responsible person’s liability according to the M SR. Member States
currently await the Commission’s instruction on article 4 of the MSR which shall indeed clarify what
the responsible person’s liability involves according to the MSR.
Definition of service providers
The DSA covers four different types of providers: intermediary services, hosting services, online platforms,
and very large platforms. As the distinctions between the categories are not very detailed, further descrip-
tions and examples of service providers falling within the different categories would be useful, making it clear
to the companies what obligations they are subjected to.
Apart from this, it is essential to clarify whether a fulfilment service provider in the MSR can also be an online
platform as defined in the DSA and thus be comprised by both sets of rules.
We need a clearer definition of what constitutes an ‘active recipient’, as this is decisive for the types of obli-
gations that the service provider is subjected to. From the Commission’s glossary it only appears that a user
is either a physical or legal person using a service, e.g. accessing and looking at goods on a site. It could
advantageously be specified what is understood by ‘using’ a service, for instance that it requires that the user
does something actively on a service. It is not clear from the present definition, whether it is enough to con-
sider a person a user if a person just downloads an app on their phone, without opening the app or log into
their profile. Or whether a person is comprised, if he enters a website without logging in.
For hosting service providers, article 14 introduces proposals for harmonised rules on how notifications of
illegal content are to be handled (the so-called ‘Notice-and-Action’ mechanism). Article 15 also contains an
obligation for service providers to justify decisions to delete or block access to certain information. It is im-
portant for business users to be informed where information placed online is later deemed illegal. This is
irrespective of whether the assessment was made by a supervisory authority or by an intermediary of hosting
services. Any requirements for transparency must not, however, increase the risk of hosting services being
misused. It is also important to ensure that any requirements for transparency or any removal of illegal in-
formation is proportionate. Also, the requirements must not complicate the jurisdiction of law enforcement
Know Your Own Business Consumer (KYBC)
We agree with the obligation for online platforms to receive, store, make reasonable efforts to assess the
reliability of and publish specific information on the traders using their services where those online platforms
allow consumers to conclude distance contracts with those traders (article 22). We caution however that not
all Member States have national identification documents as referred to in article 22(1)(b).
Targeted advertising is a form of advertising directed towards an audience with certain traits, based on the
product or person the advertiser is promoting. This is a positive tool to ensure benefits for both parties: the
recipient receives information that is more meaningful, and the advertising company ensures more efficient
investment of its resources.
We agree with the need to provide transparency through article 24 and 30 to clearly identify an advertise-
ment and the business user on whose behalf it is displayed. We also believe it is positive to compile relevant
information regarding that advertisement. On the other hand, we believe some of the information regarding
the advertisement (e.g. total number of recipients and the number of targeted recipients) could expose busi-
ness secrets. It could also be difficult to apply for smaller platforms that simply sell advertising space without
collecting the data which the advert uses. Overall, the application of the provisions on the transparency of
online advertising must comply with the legislation protecting the trade secret (Directive 943/2016).
It must be easy to do the right thing. What is illegal offline must be illegal online. However, it should not be
the duty of service providers to decide what is illegal. National regulators, legislators, and courts - not private
actors - must be responsible for these decisions. Most digital services operate or aim at operating cross-
border. And we therefore support efficient cooperation between Member States to strengthen regulatory
compliance within the digital environment. Further, we welcome the establishment of bodies to handle cases
of disagreement between an online platform and the user on the platform. It is important that this body can
set up a precedent, so companies do not have to raise complaints on removal of identical or similar content
repeatedly, e.g. anti-5G groups or other disinformation. It will be far too cumbersome if all cases must go
through this body.
The DSA should make clear what constitutes a violation and is finable. Regarding the enforcement of fines,
the Member States and the Digital Services Coordinator play an important role. We have experienced with
the GDPR, that some Member States are not able to issue financial fines through the competent national
authority and the case is therefore referred to the police as the next step. In these circumstances, it is im-
portant, that we learn from our previous experiences and put in place a smooth process from the beginning
as it otherwise creates an insecure situation for the business involved.