Digital Services Act guidance issued in the Netherlands

Wouter Seinenand Nienke Kingma of Pinsent Masons in Amsterdam said the guidelines for providers of online services, published by the Dutch Authority for Consumers and Markets (ACM), will shape the work of the ACM once implementing legislation for the DSA in the Netherlands takes effect.

The DSA builds on the EU’s E-Commerce Directive, which governs what online intermediaries need to do currently when they become aware of the existence of illegal activity on their services. The DSA imposes a new tiered system of regulation, where the requirements online intermediary services must meet depend on the type of intermediary service that is provided – Pinsent Masons has published a guide to help businesses understand the extent to which their services may be regulated under the DSA.

The strictest requirements apply to ‘very large online platforms’ or ‘very large online search engines’ but since 17 February this year a wider raft of rules have applied too to other in-scope services, including hosting services, online platform services, and online platform services that allow consumers to conclude distance contracts with traders.

New requirements around the removal or blocking of content are set out in the DSA as well as rules designed to curb certain types of targeted advertising. Restrictions on the way platforms can influence user behaviour through the way their interfaces are designed or operate also apply.

Kingma said the ACM’s guidelines describe the types of services to which the DSA applies, the rules that providers must comply with and how they can do so through a series of “explanatory notes”.

“These guidelines are an important tool for interpreting and implementing DSA obligations,” Kingma said. “Although not legally binding, the document provides insight into how the ACM is likely to enforce.”

Seinen added: “The ACM is the intended supervisor for the DSA in the Netherlands and as soon as the Dutch implementation law has entered into force, the authority can take enforcement action in addition to providing information. This is expected to be the case early next year. Companies and consumers can already report to the ACM if the rules are not being followed properly.”

Online intermediaries can expect the European Commission to “ramp up and intensify” its enforcement of the DSA over the next five years, according to political guidelines that will shape the work of the new Commission when it has been configured.