On 12 September 2024, Coimisiún na Meán (CnaM) issued formal information requests (RFIs) to twelve digital service providers (providers) about their approach to reporting options for illegal content and points of contact for users under the Digital Services Act (DSA).

The issuance of these voluntary requests is timely as providers are in the early stages of embedding compliance with the DSA.

Responses to CnaM’s RFIs are voluntary, and CnaM does not have the power to compel the immediate removal of illegal content.  However, the RFI process is a targeted, synchronised approach by CnaM to multiple providers and represents a significant milestone in the regulatory landscape for digital services.

What obligations under the DSA do the RFIs cover?

The RFIs concern two key obligations set out in Articles 12 and 16 of the DSA.

Article 12 of the DSA:

A core obligation of the DSA is that all intermediary service providers (hosting services, online platforms, online marketplaces, very large online platforms (VLOPs) or very large online search engines (VLOSEs)) must establish a single point of contact for enabling recipients of their services to “communicate directly and rapidly with them, by electronic means and in a user-friendly manner” (Article 12).

This obligation exists in the wider DSA remit, which requires providers to establish a point of contact for communicating with EU member state authorities, the EU Commission and the European Board for Digital Services (Article 11) or where the provider is non-EU based, to designate a legal representative to ensure compliance with decisions issued under the DSA (Article 13). In each of these cases, the relevant provider must also provide information about how to make the single point of contact easily accessible to the public.

Article 16 of the DSA:

Another core obligation of the DSA, set out in Article 16, applies to hosting services, online platforms, online marketplaces, VLOPs, and VLOSEs. These providers are required to implement mechanisms to allow service users to notify them of the presence of allegedly illegal content.

The provider’s reporting mechanisms must be “easy to access and user friendly” and should facilitate the submission of “sufficiently precise and adequately substantiated notices” (Article 16(1) & Article 16(2)).

Other requirements of Article 16 include obligations to notify a complainant of the provider’s decision on the information set out in a notice “without undue delay” (Article 16(5)) and to take measures to enable the submission of information notices which contain several elements set out in Article 16(2) of the DSA. These include:

• a sufficiently substantiated explanation of the reasons why the complainant alleges the information to be illegal;
• the exact electronic location of the information; and
• the bona fide belief of the individual submitting the notice.

What Happens Next?

Each RFI, which is specific to the individual provider to which it is directed, aims to help CnaM evaluate and understand the relevant provider’s compliance with Articles 12 and 16 of the DSA.

The twelve providers have two to four weeks to respond to the RFIs. After that, if they are found not to comply, CnaM can issue a compliance notice directing the providers to address any compliance gaps. Where such notices do not lead to improvements, CnaM may open a formal investigation.

Failure to comply with the obligations under the DSA can attract significant fines.  If a provider is found to be non-compliant, it can face fines of up to 6% of the preceding year’s worldwide turnover. Furthermore, in a way reminiscent of the GDPR, users can seek compensation for damage or loss due to an infringement of the DSA.

Conclusion: Assess your DSA Obligations

One in three complaints received by CnaM concerns problems reporting illegal content online. Businesses need to be cognisant of the increased regulatory scrutiny placed on monitoring and protecting the public from harmful, illegal content.

For more information on the DSA, see William Fry’s TechReg Connect software solution; or contact Leo Moore, Rachel Hayes, or your usual William Fry contact in our expert Technology team.

Contributed by Jordie Sattar