Guidelines for Online Intermediaries on the Scope of EU Digital Services Law

A tiered regulatory system is adopted, with different strict obligations depending on the nature and scale of the services provided. In order for intermediaries to understand exactly what obligations they must comply with, they must first determine how their services should be classified for DSA purposes. In this guide, we look at the services within the scope of a DSA and examine the different categories these services may fall into.

What services does the Digital Services Act apply to?

The Digital Services Act applies to three “intermediary services”. These are just plumbing services, caching services, and hosting services. Article 3 of the DSA defines each of these three services fairly instructively, and cites examples in Article 29, but the term basically applies to:

  • Facilitate access to or transfer of information over a communications network;
  • Temporary storage of information transmitted over such networks in order to increase the efficiency of data exchange;
  • To store information provided by users of the service upon request.

Examples of hosted services include cloud computing, web hosting, paid reference services or services that support the sharing of information and content online, including file storage and sharing, but whether the final service is within the scope of the DSA will depend on its “technical capabilities”.

Substantial links with the EU

First, intermediary services are only subject to DSA to the extent that: they are provided in the EU, and; the person or business receiving the services has their place of establishment or is located in the EU. It does not matter where the providers of these services themselves are established or located.

Whether or not an intermediary service is “provided” within the EU depends largely on whether the provider has a “substantial connection” with the EU. Article 3 of the DSA explains that this will be the case if the provider is established in the EU or applies other standards.

Statement 8 of the DSA further states that if the number of persons or businesses receiving its services in one or more EU countries is “significant” relative to the population or status of that member state.

Activity targeting the EU market will also be considered evidence of a “substantial link”. Relevant factors specified in this regard include the language of the service or advertisement, the currency supported by the service, the likelihood of ordering products or services, the use of top-level domains, the availability of applications, and the manner in which customer relationships are handled. However, Recital 8 makes it clear that the fact that a website is technically accessible in the EU does not necessarily mean that the business behind the website has substantial ties to the EU.

different categories

For online platforms, determining whether they provide intermediary services within the DSA is only the first step in understanding the scope of the demands they face. The next step is to understand which type of intermediary service they belong to.

Although there are exceptions for micro and small and medium enterprises, the classification is generally as follows:

  • All in-scope intermediary services are subject to the due diligence and transparency obligations set out in Title III, Section 1 of the DSA.
  • Chapter 3, Section 2 contains further requirements that Managed Service Providers (including Online Platforms) must comply with.
  • Section 3 of Chapter 3 outlines additional provisions specific to online platforms.
  • Chapter 3, Section 4, again contains further rules for online platforms that allow consumers to enter into remote contracts with traders.
  • Section 5 of Chapter 3 details additional obligations that only providers of hyperscale online platforms and hyperscale online search engines must comply with.

There are marked differences in the legislative requirements for different categories, making it absolutely critical for intermediary service providers to determine which legislation applies to them. This can be a particularly complex task, where providers offer a range of different but interoperable services.

For example, it is entirely possible that some services provided by online intermediaries fall within the scope of the DSA, while others are not, or the services fall into different categories defined by regulation. It is important to consider each service individually to determine whether and to what extent the provisions of the DSA apply. Some guidance is included in the DSA to help with classification.

What constitutes an online platform under DSA?

As mentioned above, one of the main differences that intermediary service providers need to be aware of is the difference between hosting services and online platform services. Online platforms are considered a sub-category of Managed Service Providers under DSA. The difference between the two is that online platforms not only store information, but also disseminate it.

However, the question is not so clear-cut, as factors such as to whom hosting service providers disseminate information and the degree to which they disseminate the core of their service offerings determine whether they qualify as online platform service providers. Hosting providers can only be considered online platforms under DSA if they disseminate information to the public.

Notably, Recital 14 explored the concept of “communication to the public”. Among other things, it clarifies that information is only considered to be disseminated to the public under DSA if it is directly requested and generally made available by the recipient of the service.

A hosting provider that disseminates information to registered users is not considered an online platform for DSA purposes, if those users have been automatically registered or if their access to the information is determined by a human decision or selection process.

Even if hosted service providers do communicate information to the public, they will only be considered online platforms for DSA purposes if the communication features or functions of their service offerings are not merely secondary or ancillary.

Recital 13 goes into more detail about the exception and cites a real-world example: the comments section of a newspaper website is unlikely to qualify as an online platform service because the site’s primary purpose is to publish news, but a social network storage comment provider would Qualifies as an online platform service even if it is an ancillary service for publishing these posts. A reading of the recital also suggests that cloud computing or web hosting providers are unlikely to fall within the scope of a DSA, even if they occasionally disseminate information.

What constitutes a very large online platform under DSA?

If an online platform has an average number of monthly active recipients of services in the EU that are “equal to or higher than 45 million” (calculated on a 6-month average), the platform will be referred to as a “super-large online platform”, according to the DSA processes specified in, they have been designated by the European Commission as very large online platforms.

The 45 million threshold is currently equivalent to about 10% of the EU population and will be reviewed and revised over time. The DSA empowers the European Commission to develop, in further EU legislation, a method for calculating the average number of monthly active recipients, known as an authorisation act. The method is still to be published, so it is unclear how the calculations must be done. Nonetheless, once these actions are adopted, the online platform provider is still obliged to abide by the method.

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