The Digital Services Act (DSA)
1. We support the goals of the DSA to ensure a safer, more
predictable and trusted online environment.
2. The DSA should focus on intermediaries disseminating public
information to ensure a safer and more transparent online
3. While codes of conduct could curtail “systemic risks” that are
harmful but not necessarily illegal, we agree that the DSA
should focus on the removal of illegal goods & content online.
4. Upholding the “country of origin” principle throughout the
application of the DSA is of paramount importance.
5. We agree that the current limited liability scheme of the
eCommerce Directive should continue to be upheld and that
authority orders should be harmonised to efficiently remove
illegal content rapidly. We support harmonisation of the
notice and action and trusted flagger mechanisms to ensure
efficient removal of illegal goods and content online.
6. We support no general obligation to monitor and the ability
for platforms to be encouraged to carry out their own
investigations to actively remove illegal content online.
7. We support the Know Your Business Customer (KYBC)
provision to apply to online platforms that allow consumers
to conclude distance contracts with 3rd party traders for the
sale of goods or content.
AVENUE DE CORTENBERGH 168 – BE 1000 BRUSSELS – BELGIUM
TEL +32 (0)2 237 65 11 – FAX +32 (0)2 231 14 45 – E-MAIL email@example.com
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EU Transparency register 3978240953-79
Digital services have continued to thrive throughout the application of the eCommerce
Directive. However, since its inception in 2000, the state of the internet and the business
models it supports have changed rapidly. Online intermediaries now play a prominent
role in offering goods and services to EU citizens in what is now a highly varied and
In 2002, only 7% of EU citizens shopped online at all, this now stands at over 70%.
Online commerce has become more popular due to its consumer benefits of: choice,
ease and comparability. This has also offered businesses greater opportunities to scale
up and reach new markets. In 2015, the Commission estimated the online sales of goods
at 7% of the total retail sales in the EU. The upward trend in e-commerce continues with
the annual value of e-commerce in Europe expected to be €621 bil ion by the end of
2019, up from €547 bil ion in 2018, a 13.6% growth rate, compared to an annual growth
rate of between 2 and 3% for retail overall. E-commerce across all digital channels
therefore represents about half of the growth in retail in absolute value. In 2017 about
68% of EU internet users shopped online at least once.
However, there is an ongoing concern about measures to control unsafe and counterfeit
goods brought through these online channels. IP infringing goods continue to be
imported from 3rd countries for distribution across various channels. In 2019 EU customs
detained 40m1 articles with a potential retail value of €759m. Unfortunately, a large
amount of these goods were found to be counterfeit. Around 80% of actions by customs
related to small packages. There is no data about the sales channels through which
these were ordered, although DG TAXUD reports that the goods seized in postal traffic
are mainly consumer articles ordered via ecommerce – which could therefore relate to
purchases directly from websites, via social media advertisements, sales through online
marketplaces or other distance selling. Separately, the EUIPO estimates that the value
of all domestic imports of IP infringing items across all channels could be as large as
€121bn in 2016.
A 2018 Eurobarometer found that 60% of respondents thought they had seen some sort
of illegal content online when using digital services. This included scams, frauds, illegal
practices and hate speech. The EU network of hotlines for exploited children, INHOPE,
estimated that online child sexual abuse material processed between 2017 and 2019
The ongoing COVID-19 pandemic and pursuant local lockdowns have increased the use
of digital services, which have provided an important means of keeping consumers
supplied and many businesses able to continue to trade in difficult times. With that
growth comes further opportunities for illegal goods and content to circulate. At the same
time, we remind policy makers that other legislation impacting the online economy does
currently exist in other policy areas: the GDPR, the Geo-blocking Regulation, the
Copyright Directive, the Terrorist Content Regulation and the Platform to Business
Regulation. More recently, the Commission has launched both an IP Action Plan and a
Customs Action Plan. We therefore remind policy makers that digital services already
make conscious efforts to curtail the number of illegal activities that are online.
1 The largest volumes seized were matches (22.9%), cigarettes (21.3%), packaging materials (13.6%),
toys (9.6%) and clothing (3.9%).
Cooperation with authorities also to address these issues also takes place. This is not
only to be compliant with the law, but to enable a safer and therefore more profitable
online space. Businesses thrive on customer trust, and trust is earned by services that
focus on protecting their customers and ensuring the integrity of their services. However,
national notification and action procedures born from Art 14(3) of the eCommerce
Directive remain highly fragmented in practice. We recognise the issue of the growing
amount of illegal goods & content online and the need to complement the eCommerce
Directive to the realities of the current online landscape. We also recognise the need to
add more novel due diligence requirements of platforms with the largest reach in the
public space. We share the Commission’s ambition to ensure a safer, more predictable and
trusted online environment. As a key societal stakeholder, BusinessEurope
outlines its reaction to the Commission’s proposal for the DSA, below:
The online economy offers various services to natural and legal persons. From
intermediary or hosting services offering network and cloud infrastructure to online
platforms offering public marketplaces or social media, the digital single market has
complex supply chains, different actors responsible for offering individual services that
when taken together, offer a seamless consumer and business user experience.
For these services to remain beneficial for business users and consumers alike, each
actor involved in offering these services should be responsible for ensuring that they are
free from illegal goods or content. However, intermediaries providing merely technical
services may not technically or even legally be able to see and remove potential illegal
content on their service.
While we agree with the definition and coverage of “online platforms” (Art 2(h)) being
those that only disseminate public information and should adhere to the graded
obligations to ensure a transparent and safe online environment as listed in Chapter III
and any potential order under Art 8 to act against illegal content, we remain concerned
with the definition of a “hosting” service under Art 2(f) which when read with Art 2(b)
creates concern for service providers that do not disseminate public information as they
do not have legal access or control over client or user generated data. Some use cases
of cloud infrastructure could also mistakenly be covered.
It is necessary to consider that Art 2(f) includes “hosting” services in the scope of the
DSA that store information at the request of “legal persons” (Art 2(b)). However, some
B2B services do not aim to disclose information to the public, particularly industry
platforms or cloud services. Content moderation in these circumstances can therefore
be nearly impossible. Such service providers cannot always see and remove individual
pieces of content. The DSA should take this complexity into account. Therefore, these
services should not be penalised if they cannot fulfil Art 8, 14 or 19 obligations because
it is otherwise technically or legally impossible. However, if such a situation arises where
an Art 8, 14 or 19 notice of illegal goods or content can be linked to such B2B services
and they are not technically or legally restricted from acting, then they should act without
delay. We agree that in other cases, B2B services, could implement some graded
obligations assigned to them in Chapter III where relevant to ensure a transparent and
safe online environment.2
Inclusion of “reference” to an il egal activity in Art 2(g) should avoid a broad application
that considers content illegal that is simply being demonstrated (eg. a film with cars
breaking the speed limit).
We agree with the results of the DSA’s previous stakeholder consultation that ‘harmful’
(yet not illegal) content should not be covered by the DSA. Therefore, it should not be
subject to removal obligations. We support the idea of codes of conduct to curtail
“systemic risks” (that are not always il egal) on Very Large Online Platforms (VLOPs),
but in support of the results of the stakeholder consultation and Parliament INI report
(Saliba MEP, point 47) and the Commission’s explanatory memorandum, we believe Art
35 should clarify that the codes of conduct (that can be developed by means of a self-
regulatory process) should focus on tackling illegal content and reducing systemic risks
with the reference to the assessment criteria defined in Article 26(1) only. In relation to
Art 26(1)(b), on curtailing negative impacts on various fundamental rights, a specific
focus on best practices of cyber resilience could be included.
COUNTRY OF ORIGIN
Upholding the “country of origin” principle (Art 3(2) of the eCommerce Directive)
throughout the application of the DSA is of paramount importance. However, Member
States have diverged from this principle in practice and frequently used the derogations
available to them (Art 3(4) of the eCommerce Directive). Various Member States are
currently derogating from the “country of origin” principle for disproportionate reasons.
This is fragmenting the single market.
We are positive on the neutral stance of the DSA so that various types of illegality can
be defined under separate specific legal frameworks but ask for more detail on how the
process of cross border takedown orders would work in practice. While national rules will
clearly continue to exist, it is legally unclear as to which provision would succeed in
practice: the “country of origin principle” of the eCommerce Directive or the ability for
Member States to ensure all businesses follow their national rules, whether established
there or not (eg. Art 2(g)).
We 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. Current powers of enforcement should be used to
ensure that this principle is indeed functioning correctly. The application of the DSA
should in no manner lead to the erosion of the country of origin principle or restrict the
free movement of services for unjustified reasons.
We support clarity on how the proposals on cooperation between national Digital
Services Coordinators (Art 45, 46, 49) will operate to support, and not undermine, the
Country-of-Origin principle and oversight by the DSC of establishment.
2 Confindustria does not agree with the text reported because it has an excessively generic formulation: the
risk is to create an arbitrary interpretation on the scope of application of the DSA, in relation to B2B
services, that could undermine the harmonization objective of the regulation. Furthermore, the risk
associated with the generic nature of the sentence is regulatory vacuum, to the detriment of legal certainty.
We agree that the current limited liability scheme of the eCommerce Directive (section
4) should continue to be upheld. The co-legislators should continue to remember that no
matter how strict the rules we place on intermediaries to police the market, non-bona fide
players will always attempt to cut corners and use the practical benefits of the platform
economy to do so. We should not forget that proper enforcement of existing Intellectual
Property and Product Safety frameworks by Member States should be better resourced
and utilised to dissuade illegal actors from posting online in the first place. We welcome
the recognition of this in the IP Action Plan, the Customs Action Plan and the recitals of
the market Surveillance Regulation.
While providers of intermediary services should not intentionally mislead the consumer
or their rights under law, we are concerned as to how Art 5(3) has been drafted in relation
to “hosting” services. Currently phrased, it could be construed that if services present
information of a 3rd party (eg. a business seller) in a standardised or organised way, as
is commonplace on a variety of online services and that this “could be” interpreted by the
“average and reasonably well-informed consumer” as being offered by the hosting
service itself, then the usual limited liability would not be available to them. This is a
concern as most hosting services present information in a standardised way to support
consumer navigation purposes. It is important that hosting services adopt the highest
standards of transparency to highlight that the information comes from a 3rd party which
is not offered by the hosting service.
We understand the principle that intermediary services should have no general
monitoring obligation (Art 7) and that the orders to act against illegal content (Art 8)
should be harmonised more effectively and avoid unnecessary and burdensome
formalities for notices (eg. including URLs as mandatory). The legal specifications for a
notice should be defined by law according to the type of activity, this would allow to
correctly identify the relevant types of content and action they should take to support
legal certainty and maximum harmonization at EU level. Clearly similar and equivalent
cases to the original order should also be rapidly dealt with.
Intermediaries should act against illegal goods & content on their services that have been
presented to them by authorities or have been detected through their own investigative
initiatives, without delay. Intermediaries should be encouraged to actively engage in
illegal goods & content moderation, rather than just wait to receive reasonable
knowledge. That is why we support the proposal that intermediaries are not ineligible
from the exemption of liability if they voluntarily carry out their own investigations for legal
compliance (Art 6), however this could be made clearer.
DUE DILIGENCE OBLIGATIONS
We agree with the approach in Chapter III to set graded due diligence obligations on
relevant digital services providers to support a transparent and safe online environment.
In relation to the application of Art 15(4), it would be necessary to clarify methods of
implementation which hosting services should uphold to publish the information of the
decisions and reasons behind the removal of information online. In addition, the
competent authority pursuing an Art 8 removal should be the one delegated to publish
the information in the Commission’s public register.
Diversity of opinions and scrutiny by the media is important for a democratic society and
must be preserved. While we are therefore supportive of Art 12 as an important
confirmation of the freedom of expression and information by referral to the "applicable
fundamental rights of the recipients of the service as enshrined in the Charter", we
propose adding a specific referral to Art 11 of the Charter itself to the text to highlight
that freedom and pluralism of the media is a vital right to uphold within the DSA.
In relation to use of any “out-of-court dispute settlement” in Art 18, we support an
evaluation of the impact its use has on commercial relationships to ensure no adverse
impact of such provisions arise.
Notice & Action Mechanisms:
We support the notice & action mechanism within Art 14 to permit “any individual” or
“entity” that “considers” information to be il egal online to submit it to a hosting service or
online platform (Art 14(1)). This would greatly aid a safer online experience for
consumers and business users.
Often known as “flagging”, these practices already exist in online marketplaces and
social media. Their use and what it demonstrates widely varies across different business
models. Overall, the predominant use of flagging today attempts to make the online user
experience safer. It also permits the digital service provider to efficiently design how the
flagging system is designed to suit the needs of its own business model. We therefore
support Art 14 as it would help standardise and substantiate requests to act on illegal
goods & content, particularly through demonstrating the criteria needed in a notice
through Art 14(2).
Art 14(3) demonstrates that if Art 14(2) criteria are fulfil ed by the “flagger” then it “shal
be considered to give rise to actual knowledge”. It is currently unclear as to effect of this
“actual knowledge” in practice.
While some digital services could feel confident to take decisions in certain instances
where the facts presented are obvious, it is by no means that all digital services, for
example, online marketplaces permitting thousands of various business users to sell on
them, could always be correct. For this reason, it is important that this mechanism is not
confused with the procedure established in Art 8. Also, permitting “any individual” or
“entity” that “considers” information to be il egal could be open to unintended
consequences such as mistakes or abuse.
Therefore, we support further legal clarity to ensure that the Art 14 notification truly
creates a virtuous collaboration between platforms, commercial and end users to combat
illegal goods and content. It is important that the notification ensures immediate action
to be taken by the platform to rapidly verify the validity of the notification.
In cases where the platform can identify clearly that indeed the goods or content notified
is illegal then it should be acted upon without delay. This responsibility should in no way
be abused however and relevant entities should support actions to achieve a safer, more
predictable and trusted online environment. Clearly similar and equivalent cases should
also be rapidly dealt with, particularly when identified through proactive measures (eg.
However, if there is a genuine demonstrable doubt, the platform should have the option
to seek assistance for further clarification with a relevant authority. This option should
not be used as a means to curtail obligations expressed within Art 14 or delay immediate
investigation by the platform on the receipt of a notification under Art 14. Otherwise,
authorities should respond to such requests for assistance from platforms within 5
working days. This would ensure that platforms can follow up with appropriate actions
on the basis of “actual knowledge” being clarified in cases where it was not immediately
Art 14 should not impact the application of Art 6.
Art 19 creates the status of a “trusted flagger”. Once Art 19(2) obligations are fulfil ed
and the status approved (Art 19(3)) by the national Digital Service Coordinator, “trusted
flaggers” enjoy their Art 14 notifications to be dealt with by digital service providers as a
“priority” or “without delay” (Art 19(1)). Clearly similar and equivalent cases should also
be rapidly dealt with, including where they can be identified under Art 6.
It is helpful that an authority does a credential check of the applicant under Art 19(2) and
approve their status formally. Accuracy is a fundamental qualification. Inaccurate notices
would otherwise only put users at risk, distract platforms from acting on valid notices and
proactive tasks, overall undermining this process for handling illegal content.
However, we note that application of a “trusted flagger” may not be possible for most
businesses (eg. rights holders, brand owners) due to Art 19(2)(b). This needs to be
amended so that businesses with a vested interest in operating online can play a role in
ensuring the online user experience is safer. Once approved trusted flaggers would notify
individual instances of potential illegality directly to the online platform for a decision to
be taken immediately without delay or the involvement of any authority.
We highlight support for monitoring “trusted flaggers” as described within Art 19(5) & (6)
and propose that Digital Services Coordinators update the trusted flagger lists and share
information at European level.
It should be noted that appointment of Digital Services Coordinators should be selected
by Member States to carry out their duties under this “trusted flagger” mechanism (eg.
approval of status) with clear independence and be granted sufficient funding to ensure
the system works efficiently. Know Your Own Business Customer (KYBC):
We agree that Art 22 should apply to online platforms that allow consumers to conclude
distance contracts with 3rd party traders for the sale of goods or provision of services.
Online platforms allowing consumers to buy from 3rd party traders should collect
information from those traders to identify who they are should issues arise. This would
greatly aid traceability for counterfeit or dangerous products and for illegal content.
Art 22 mentions the offer of “services” within this provision, for legal certainty, a specific
reference to “content” should clearly be demonstrated to ensure that Art 22 indeed
covers online platforms that allow consumers to conclude distance contracts with 3rd
party traders in relation to the sale of content alongside products. This would aid the
traceability of counterfeit or dangerous products and illegal content equally, in particular
to protect intellectual property.
We caution that not all Member States have national identification documents as referred
to in Art 22(1)(b) and verifiability of information provided is not always possible. Further
to this, 3rd countries are likely have even more diverse systems. We therefore believe
that a passport should be listed in Art 22 as a possibility instead. We also recommend
clarifying that the trader should provide all the information required under Article 22 to
the online platform (including the information under Article 22(1)(d), given it would be
impossible for the online platform to chase information about economic operators down
the value chain), and that the online platform should not be held liable for information
provided by the trader that ends up being inaccurate.
We are also concerned that these obligations could be avoided by professional sellers if
they attempt to present themselves as private sellers. Obligations therefore need
strengthening to ensure that these provisions apply to platforms which indeed host
Each year unsafe goods are sold to consumers via an online channels without having a
market actor to hold responsible. This negatively affects the internal market, competition
and exposes consumers to a great risk. The proposed safeguards in the DSA – such as
notice-and-take-down – do not effectively protect consumers against this issue as they
take place after the dangerous goods have been sold.
We find it important to address this issue, particularly for “high-risk” goods before they
are placed on the European market and sold. Therefore, online platforms that: facilitate
the sale of harmonised consumer 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, should
verify that the product bears the required conformity mark (CE mark) and that it has other
relevant documents (eg. EU declaration of conformity). This could be achieved through
ensuring that when such business users send other relevant Art 22 information, they
simply confirm that these documents are indeed in existence should enforcement
activities be needed at a later date.
While the online platform cannot be held responsible for the legality of the product itself,
they should be responsible to carry out this basic due diligence to ensure these types of
players at least confirm they possess the documents required for any potential
enforcement activities by European market surveillance authorities. This due diligence
check could be carried out by the online platform only in these specific instances in
parallel to collecting the business users traceability details.
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
We therefore agree with the need to provide transparency through Art 24 & 30 to clearly
identify an advertisement and the business user on whose behalf it is displayed. We also
believe it is positive to compile relevant information regarding that advertisement. We
understand that the provision of the main parameters to determine the recipient of the
advertisement should be done in a manner that does not interfere with the advertisement
itself (eg. appearing instantly upon consumer request). On the other hand, we believe
some of the information regarding the advertisement (eg. total number of recipients and
the number of targeted recipients) could expose business 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).
Data Access and Scrutiny:
Art 31 rightly permits access to data of very large platforms to enable monitoring to
assess compliance of this Regulation. National Digital Service Coordinators and the
Commission would both gain access for these specific purposes. However, they would
also gain access alongside researchers affiliated to academic institutions, to aid
identification of systemic risks (Art 31(2)). In this context, a clearer definition of "vetted
researcher" is needed.
Digital Services Coordinators and the Commission should be granted appropriate
powers within Chapter IV to effectively enforce this Regulation, particularly cross-border,
we highlight that many Member States market surveillance authorities and other
regulators involved with keeping online and offline markets safe are already grossly
under resourced. Therefore, we implore Member States to uphold their political intentions
and sufficiently fund their authorities and regulators responsible for enforcing existing
frameworks and the DSA.
In order to foster harmonisation in the implementation of this Regulation in the Member
States, it is necessary support strong alignment between the Commission and national
Digital Services Coordinators through promoting guidelines in support of Art 19(7) for:
defining criteria for awarding and revoking trusted flaggers but also coordination of the
notice & action mechanism (Art 14) and for orders to act against illegal content (Art 8).
These guidelines should be issued without delaying the entry into force of this
To support legal certainty, we would welcome clarity on the triggers for the exercise of
investigation and enforcement powers; the proposed calculation of fines; and safeguards
around the provision of commercially sensitive information to authorities. Many of these
aspects are left to delegated acts. This clarity will guide oversight bodies and support
proportionate regulation. We encourage the Commission to use the new Multi-annual
Financial Framework (MFF) to fund modern tools and training on online enforcement
techniques for those authorities.
We remain concerned in relation to the potential impact on supply chains regarding
powers of investigation under Art 41. More legal certainty is needed for the powers which
are granted to authorities to investigate 3rd parties that are in business relations with
digital service providers covered under this Regulation. What exactly can these 3rd
parties be asked and on what basis? Many 3rd parties will be SMEs, therefore any
enforcement measures pursuant to investigations due to mistaken or untimely responses
should be proportionate. See, for example, fines mentioned in Art 42(1) which should be
a last resort.
We also believe it is disproportionate for Art 59(2) to refer to 3rd parties (which could be
a business user or other subject) in order to fine them 1% of turnover for simply
unintentionally not giving complete or correct information. Information requested may not
always be easy for others in the supply chain to collect and provide. We would therefore
suggest deletion of the word “negligently” in Art 59(2) so that fines can only be used for
clearly intentional conduct.
We also request a longer application period than 3 months in Art 74 as this will not be a
sufficient time for businesses to prepare for such a Regulatory evolution. All relevant
business models will need longer to adjust to this new reality. A period of 24 months may
be more desirable to put the necessary resources in place.
* * *