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Embracing Digital Evolution: the Digital Services Act Becomes Fully Applicable on 17 February 2024

In an era defined by rapid technological advancements and a digital revolution, regulating online platforms and services has become a critical focal point for governments and policymakers worldwide. One significant development in this realm is the introduction of the Digital Services Act (the “DSA” or the “Regulation”)[1], a comprehensive EU legislative initiative which seeks to address the evolving challenges posed by the digital landscape.

As our lives become increasingly intertwined with online platforms, the DSA aims to strike a delicate balance between fostering innovation, protecting user rights, and ensuring a safer online environment. By setting clear rules and responsibilities for digital service providers, this Regulation aims to enhance accountability, curb the spread of harmful content, and safeguard the fundamental rights of users.

The DSA was first published on 27 October 2022 in the Official Journal of the European Union. Starting from 17 February 2024, the Regulation will become fully applicable for all providers of intermediary services (e.g., those providing mere conduit services, caching services or hosting services, as well as online platforms). Until now, the Regulation was partially applicable only for very large online platforms (VLOPs) and very large search engines (VLOSEs), as of 25 August 2023.

Previously, we have examined the DSA’s provisions, presenting our insights in a comprehensive three-part article outlined as follows:

In the first part, we explained the purpose and impact of the DSA. Additionally, we broke down the entities that fall within the scope of the Regulation and covered the rules on intermediary liability;

In the second part, we delved deep into the bread and butter of the DSA, namely the new and refined obligations applicable to various types of online intermediary service providers;

In the third part, we analysed an unusual yet interesting addition brought by the Regulation: the so-called “Good Samaritan” provision. We also talked about the relationship of the DSA with other EU laws, as well as its enforcement and timeline, before wrapping up and laying down our conclusions.

To dive deep into these topics, do not hesitate to access the above links.

DSA Implementation in Romania

Currently, in Romania, a bill implementing the DSA[2] is pending before the Senate (decisional chamber). The draft law, aiming to establish several measures for the implementation of the DSA in Romania, was first registered within the Chamber of Deputies in December 2023.

The draft law shall apply to intermediary services offered to users (formally referred to as “recipients of the service”) who are established or located in the European Union, provided by the intermediary service providers established in Romania, i.e., those: (i) whose main place of establishment is in Romania; (ii) who reside in Romania; or (iii) whose legal representative is established in Romania.

ANCOM – Digital Services Coordinator in Romania

The DSA requires that each Member State designate one or more competent authorities, acting as Digital Services Coordinators (“DSCs”), to be responsible for the supervision of providers of intermediary services established in their territory and for the enforcement of the DSA obligations. For VLOPs and VLOSEs, the Commission is the sole competent authority to supervise and enforce the DSA’s rules.

Nonetheless, under Article 58 of the DSA, if DSCs from other Member States suspect that an intermediary service provider has infringed the Regulation in a way that harms the users from their own countries, these DSCs can ask the DSC from the Member State where said intermediary service provider is established, to assess any potential issues and to take any necessary investigatory and enforcement measures.

According to the current version of the bill, the DSC for Romania shall be the National Authority for Management and Regulation in Communications of Romania (“ANCOM”). Similar to Recital 109 of the Regulation, the draft law states that ANCOM, in its capacity as DSC, does not rule on the legality of certain content existing online.

Notification Requirements for Romanian Service Providers

Any service provider established in Romania will be required to submit to ANCOM, within 45 days at the latest from the date of starting to provide its services, a notification which shall include information regarding the service provider’s identification data. The form, content, and conditions for this notification shall be eventually set out by ANCOM through a decision. On top of that, any changes to the data contained in the notification will have to be notified to ANCOM within 10 days of their occurrence.

Sanctions

The draft law implementing the DSA in Romania sets out several sanctions, such as:

fines of up to 6% of the annual worldwide turnover recorded in the previous financial year for not observing the relevant provisions of the DSA;

fines of up to 1% of the annual worldwide turnover recorded in the previous financial year for the failure by the intermediary service provider (a) to submit correct, complete or non-misleading information, (b) to submit a reply, (c) for failure to correct incorrect, incomplete or misleading information, and (d) for refusal to submit to an inspection as provided for in Article 51 of the DSA;

for trusted flaggers[3], the sanction for not observing the provisions of Article 22 paragraph (3) of the DSA consists of fines ranging from RON 5,000 (approx. EUR 1,000) to RON 30,000 (approx. EUR 6,000);

the failure by the intermediary service provider established in Romania to comply with the obligation to transmit to ANCOM the information provided for in the draft law, with all the data included therein, including any changes to such data, within the time limit and in the format established by ANCOM, is sanctioned with fines ranging from RON 5,000 (approx. EUR 1,000) to RON 30,000 (approx. EUR 6,000);

ANCOM may impose administrative fines up to a maximum daily amount of 5% of the average daily worldwide turnover or revenue recorded in the previous financial year by the intermediary service provider, calculated from the date specified in the sanctioning decision, in order to make it comply with a series of obligations set out in the bill, the content of which is identical to those listed in Article 76 paragraph (1) (a)-(e) of the DSA.

An Intriguing Future Digital Landscape

In this ever-evolving digital age, the DSA emerges as a groundbreaking framework, introducing novel concepts that redefine the rules of engagement in the online sphere. As businesses traverse this uncharted territory, the importance of compliance with the DSA cannot be overstated. Beyond mere regulation, the DSA beckons a new era of responsibility, user-centricity, and innovation. Therefore, businesses must proactively adapt and embrace these transformative changes in order to shape a responsible and promising digital future.

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[1] Regulation (EU) 2065/2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act), available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065.

[2] Draft Law on the establishment of measures for the implementation of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Regulation), and amending and supplementing Law No 365/2002 on electronic commerce, available here: https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=21433.

[3] According to the DSA, trusted flaggers are entities appointed by competent local authorities who have expertise in detecting, identifying, and notifying illegal content.

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