The Digital Services Act. What small platforms and marketplaces must do

Regulation (EU) 2022/2065 on a Single Market for Digital Services, known as the Digital Services Act or DSA, has applied since 17 February 2024 (Article 93(2)). It applies directly. In Slovakia, the Media Services Act supplements the rules on supervision and penalties. The obligations depend on the service provided. They vary according to whether the service merely stores information supplied by users or also disseminates it to the public and, for online platforms, according to the provider’s size.

When a website is a hosting service or an online platform

Hosting is a service that stores information supplied by a user at that user’s request (Article 3(g)). An online platform is a hosting service that also disseminates that information to the public at the user’s request. An exception applies where dissemination is merely a minor and purely ancillary feature of another service or a minor functionality of the principal service, cannot be used without that service for objective and technical reasons, and has not been integrated to circumvent the Regulation (Article 3(i)). Recital 13 gives the comments section of an online newspaper as a possible example of such an ancillary feature. Specific obligations apply to platforms that allow consumers to conclude distance contracts with traders, commonly known as marketplaces (Articles 29 to 32).

An online shop selling only its own goods provides its own content. If it also displays customer reviews or questions, however, it stores information supplied by those customers. Whether this makes the shop an online platform depends on how the service works. The relevant question is whether the reviews or questions are merely a minor functionality of the sales service that cannot be used without it.

Obligations that apply regardless of size

Regardless of size, providers of intermediary services are subject to the relevant obligations under Articles 11 to 14. Hosting providers, including online platforms, must also fulfil the obligations under Articles 16 to 18. Their main obligations include:

• single points of contact for authorities and users, with users able to choose a means of communication that does not rely solely on automated tools (Articles 11 and 12),
• a legal representative in one of the Member States where the provider offers services if it is not established in the Union (Article 13),
• terms and conditions explaining content restrictions and moderation, including algorithmic decision-making and human review (Article 14),
• a mechanism allowing anyone to submit an electronic notice of content they consider illegal (Article 16),
• a statement of reasons for action taken against a user’s content or account (Article 17),
• notification to law enforcement or judicial authorities of a suspected criminal offence involving a threat to a person’s life or safety (Article 18).

Micro and small enterprises do not have to publish annual content moderation reports unless they are very large online platforms (Article 15(2)). This exemption does not release them from the basic obligations listed above.

How to handle a notice of illegal content

The notice mechanism must facilitate notices that explain why the content is illegal and give its exact URL, the notifier’s name and email address, and a statement of good faith. A name and email address are not required for notices concerning offences involving the sexual abuse or sexual exploitation of children (Article 16(2)). If the notice includes electronic contact details, the provider must acknowledge receipt without undue delay. It must also notify the person of its decision and available means of redress without undue delay. Decisions must be timely, diligent, non-arbitrary and objective. The provider must disclose whether it used automated means (Article 16(4) to (6)). The Regulation does not impose a general obligation to monitor users’ content (Article 8).

A notice also affects the provider’s liability for the content. If it enables a diligent provider to identify illegality without a detailed legal examination, it gives the provider knowledge of the illegal content (Article 16(3)). To retain its exemption from liability for the stored content, the provider must then act expeditiously to remove it or disable access to it (Article 6(1)).

If a provider removes or restricts content, blocks an account or suspends payments because information is illegal or incompatible with its terms and conditions, it must give the affected user a clear and specific statement of reasons. It must do so no later than when the restriction is imposed. The statement must include the facts on which the provider relied, the legal or contractual basis, information about automation and the available means of redress (Article 17(3)). The obligation applies if the provider knows the user’s electronic contact details. It does not apply to deceptive high-volume commercial content (Article 17(2)). This regime also does not apply to orders issued by authorities under Article 9 (Article 17(5)).

The exemption for micro and small enterprises

Micro and small enterprises are exempt from the specific rules for online platforms (Articles 20 to 28), except for the information obligation under Article 24(3). They do not, for example, have to introduce the internal complaint-handling system under Article 20. They must still provide the number of active recipients of their service if requested by the Digital Services Coordinator or the Commission, together with any additional information needed to explain the calculation, without personal data (Article 19(1) and Article 24(3)). Small marketplaces are similarly exempt from Articles 30 to 32 on traders (Article 29(1)). The exemption continues for twelve months after an enterprise loses its small-enterprise status and does not apply to very large online platforms.

Size is determined under Commission Recommendation 2003/361/EC. A small enterprise employs fewer than 50 people and has an annual turnover or annual balance sheet total of no more than ten million euros. For a microenterprise, the thresholds are fewer than 10 people and no more than two million euros. Staff numbers are calculated in annual work units, so part-time work and work performed for only part of the year are taken into account. Partner and linked enterprises must also be included under certain conditions. In the annual assessment of staff numbers and financial indicators, a change of category generally takes effect after the thresholds have been exceeded or fallen below in two consecutive accounting periods. Changes in ownership or links between enterprises require a separate assessment.

Marketplaces that do not qualify for the exemption

A marketplace to which the exemption under Article 29 no longer applies may allow a trader to offer products or services to consumers in the Union only after obtaining certain information. This includes contact details, a copy of an identity document or electronic identification, payment account details and a self-certification that the offer complies with Union law. If the trader is registered in a trade register or similar public register, the marketplace must also obtain details of that register and the trader’s registration number. It must make its best efforts to verify this information. If the details are inaccurate, it must ask the trader to correct them. If the trader fails to correct or complete the information, the marketplace must suspend its service to that trader (Article 30(1) to (3)). The trader’s contact and register details and self-certification must be displayed with the offer. The information obtained must be stored securely for six months after the contractual relationship ends and then deleted (Article 30(5) and (7)). The interface must enable traders to fulfil their information obligations (Article 31). If the platform learns of an illegal product or service, it must inform the affected consumers who purchased it in the six months before it became aware of the illegality. It must tell them that the product or service is illegal, identify the trader and explain the relevant means of redress. If it does not have contact details for all of them, it must also publish this information on its interface (Article 32).

Article 6(3) applies to marketplaces of every size. Under that provision, the liability exemption does not apply to liability under consumer protection law if the platform presents an offer in a way that leads an average consumer to believe that the seller is the platform itself or a trader acting under its control.

Supervision and penalties in Slovakia

Slovakia’s Council for Media Services performs the tasks of the Digital Services Coordinator (§ 110(3) of Slovak Act No. 264/2022 Coll.). The basic rule is supervision in the Member State where the provider has its main establishment. The European Commission also has specific powers over very large online platforms and very large online search engines. The Commission alone supervises their obligations under Chapter III, Section 5. For those providers’ other obligations, the competent Member State may act unless the Commission has opened proceedings for the same infringement (Article 56(1) to (4)). For providers not established in the Union, jurisdiction also depends on their legal representative. If they do not designate one, all Member States have powers and, for very large services, so does the Commission under Article 56(6) and (7).

For breaches of specified provisions of the Regulation, including Articles 14 to 18 and Articles 30 to 32, the Council imposes a fine of up to 6% of annual worldwide turnover for the preceding accounting period (§ 145b(1) of Slovak Act No. 264/2022 Coll.). If a provider fails to supply information within the specified deadline during supervision, supplies incorrect, incomplete or misleading information, fails to correct it when requested, or refuses to submit to supervision, the Council may impose a fine of up to 1% of annual income or worldwide turnover for the preceding accounting period (§ 145b(2)).

What to check

We recommend working through the following steps:

1. Determine whether the service is a hosting service, an online platform or a marketplace.
2. Check the enterprise’s size, including partner and linked enterprises.
3. Set up the contact points and add moderation rules to the terms and conditions.
4. Prepare a notice form, an acknowledgement of receipt and a statement of reasons template.
5. For a marketplace without an exemption, establish a trader verification process.

How we can help

We prepare terms and conditions for platforms and marketplaces, including moderation rules, through our online shop terms and conditions service. We assess existing terms through our terms and conditions review. For software platforms, we provide SaaS agreements and terms. Our guide on whether online shops must verify reviews explains the consumer protection rules for displaying reviews.