European UnionDigital Services Act (DSA), Articles 4 to 10 (Liability of providers of intermediary services and orders)
Regulation (EU) 2022/2065, Arts. 4-10
In force since .
An intermediary liability rule binding private bodies.
- Obligation class
- Reporting, Disclosure
As of .
What it requires
- To keep the mere conduit exemption in Article 4, do not initiate the transmission, do not select its receiver, and do not select or modify the information transmitted. Automatic, intermediate and transient storage counts as part of the transmission only so far as it takes place for the sole purpose of carrying out the transmission and for no longer than is reasonably necessary for it.
- To keep the caching exemption in Article 5, do not modify the information, comply with the conditions on access to it and with industry-standard rules on updating it, and do not interfere with the lawful use of industry-standard technology to obtain data on its use. Act expeditiously to remove or disable access to what you have cached once you have actual knowledge that it has been removed from or disabled at the initial source, or that a judicial or administrative authority has ordered that.
- To keep the hosting exemption in Article 6, remove or disable access to illegal content expeditiously once you have actual knowledge of illegal activity or illegal content or, for a claim for damages, awareness of facts or circumstances from which it is apparent. The exemption does not apply where the recipient of the service acts under your authority or control.
- If you are an online platform that allows consumers to conclude distance contracts with traders, the hosting exemption does not apply to your liability under consumer protection law where you present the specific item of information or otherwise enable the specific transaction at issue in a way that would lead an average consumer to believe that the item, product or service is provided by you or by a recipient acting under your authority or control.
- You do not lose the exemptions in Articles 4, 5 and 6 solely because, in good faith and in a diligent manner, you carry out voluntary own-initiative investigations into illegal content, take other measures to detect, identify and remove it or disable access to it, or take the measures needed to comply with Union or national law, including this Regulation.
- You are not required to monitor the information you transmit or store, or actively to seek facts or circumstances indicating illegal activity: Article 8 bars imposing a general obligation to do so.
- On receiving an order from a national judicial or administrative authority to act against one or more specific items of illegal content, inform the issuing authority, or any other authority the order specifies, without undue delay of any effect given to the order, specifying if and when effect was given. At the latest when effect is given, inform the recipient of the service concerned of the order and its effect, including a statement of reasons, the possibilities for redress and the territorial scope of the order.
- On receiving an order to provide specific information about one or more specific individual recipients of the service, inform the issuing authority, or any other authority the order specifies, without undue delay of its receipt and of the effect given to it, specifying if and when effect was given. At the latest when effect is given, inform the recipient concerned of the order and its effect, including a statement of reasons and the possibilities for redress. Such an order can require only information you have already collected for the purposes of providing the service and that lies within your control.
- Comply with an order of a judicial or administrative authority to terminate or prevent an infringement: Articles 4(3), 5(2) and 6(4) leave that power untouched.
If you get it wrong
Private right of actionYes
Penalty structure
Article 52(3) requires Member States to set the maximum fine for a failure to comply with an obligation in the Regulation at 6 % of the provider's annual worldwide turnover in the preceding financial year, and the maximum fine for supplying incorrect, incomplete or misleading information, failing to reply or rectify, or failing to submit to an inspection at 1 % of annual income or worldwide turnover. Article 52(4) sets the maximum periodic penalty payment at 5 % of average daily worldwide turnover or income per day.
- Rule
- Turnover pct only
- As of
- Turnover percentage cap
- 6
Who enforces it
Enforcement body
The authorities of the Member State in which the provider's main establishment is located (Article 56(1)) and, for providers of very large online platforms and of very large online search engines, the European Commission (Article 56(3)).
What this law does
Articles 4 to 6 of the Digital Services Act exempt a provider from liability for information it transmits (mere conduit), stores temporarily to make its onward transmission more efficient or more secure (caching), or stores at the request of a recipient of the service (hosting), on the conditions each Article sets.
The hosting exemption in Article 6 holds while the provider has no actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which it is apparent, or, on obtaining that knowledge or awareness, acts expeditiously to remove or disable access to the illegal content.
Article 7 keeps the exemptions for a provider that, in good faith and in a diligent manner, carries out voluntary own-initiative investigations or takes other measures to detect, identify and remove illegal content. Article 8 bars imposing a general obligation to monitor the information that providers transmit or store, or actively to seek facts or circumstances indicating illegal activity.
Article 9 requires a provider that receives an order from a national judicial or administrative authority to act against specific items of illegal content to inform the issuing authority without undue delay of any effect given to the order. Article 10 requires a provider that receives an order to provide specific information about specific individual recipients of the service to inform the issuing authority without undue delay of its receipt and of the effect given to it.
Article 89 of the Regulation deleted Articles 12 to 15 of Directive 2000/31/EC and construes references to them as references to Articles 4, 5, 6 and 8. The Regulation applies to intermediary services offered to recipients that have their place of establishment or are located in the Union, irrespective of where the providers have their place of establishment.
When LexLint raises it
When your app profile says your app operates a social platform.