The new Internet Constitution is now in force

February 17, 2024 is an important date from the point of view of both Internet users and many entrepreneurs for whom it is the main channel of doing business. This is the day when the provisions of the EU regulation passed on October 19, 2022 – the Digital Services Act, called the new Constitution of the Internet – began to apply to all entities covered by its provisions (earlier, i.e., by August 25, 2023 from the requirements of the DSA had to be implemented in their organizations by very large online platforms and search engines).

Why was the DSA created?

When the European Union first attempted to regulate the Internet in 2000, the global and Polish digital space looked vastly different than it does today. E-commerce was crawling, the days of the reign of social media giants such as Facebook and Tik Tok were yet to come. It was difficult to fully imagine at that stage what enormous opportunities for influencing almost every aspect of daily life the development of the Internet would bring. In these realities, the regulations introduced by the European Union – namely the E-Commerce Directive – were limited in scope. This is well illustrated by the fact that the directive had just over 20 articles. The provisions of the directive were introduced into the Polish legal order in 2002 by the well-known Act on Provision of Electronic Services, which is familiar to all those who deal with e-commerce-related topics.

After two decades of intense development and change, EU policymakers have recognized that the Internet is in dire need of new regulations that comprehensively cover this important area of the digital space, such as intermediary services, on the one hand ensuring that users’ rights are protected at an appropriate level, and on the other hand giving member states the tools to combat significant threats, such as disinformation. It was precisely the need to adapt regulations to the new – as exciting as it is challenging – digital reality that was one of the goals of the enactment of the October 19, 2022. Digital Services Act, dubbed the new Internet Constitution.

Three primary objectives of the DSA

An analysis of the Recitals to the DSA makes it possible to distinguish three fundamental goals that guided the drafters of the regulation:

D- FOR UPDATE
S- FOR UNIVERSITY
A- FOR CYBER SECURITY

The update covers the issues that were basically described in the introduction – that is, the adaptation of regulations passed more than 20 years ago to new technologies, business models, but also the challenges and threats posed by the important role of the Internet and its impact on the world.

The unification of regulations – the second major goal of the DSA – is intended to ensure that through close harmonization (mainly through the EU’s use of the tool of a directly applicable regulation, rather than a directive, in the member states), obstacles to entrepreneurs that have hitherto been the result of differences in regulations in each member state will be removed.

And finally, cyber-security: the EU’s goal is to create a secure, predictable and transparent digital space that protects the fundamental rights set forth in the Charter of Fundamental Rights, on the one hand, and is free of illegal content and disinformation, on the other.

🤔 Who is affected?

The DSA defines duties and responsibilities for intermediary service providers, such as online platforms and search engines. It might seem that this act is addressed to a rather narrow audience, but in practice, due to, for example, the very broad definition of a web hosting provider, many entrepreneurs running a “traditional” online store may also be obliged to implement solutions under the DSA.

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There is no doubt that the European Union has undertaken an ambitious task, implementing a revolution that for indirect services is to be what RODO was for personal data. At the same time, an analysis of the AUC leads to the conclusion that the authors of the regulation wanted to avoid the most significant mistakes of the RODO (among which one points out the imposition in the RODO of essentially analogous obligations on all businesses, regardless of the size and scope of their activities). Whether this mission will be successful – we will find out in time.

💬 Want to learn more about the goals of the Digital Services Act and the impact of the new regulations on your business? For more, check out the publications of our law firm’s advisors: Link to publication