Abstract

The decision of the European Union bodies to initiate and carry out the legislative process on the Digital Services Act is to be unequivocally welcomed. After more than 20 years of Directive 2000/31/EC being in force, it was necessary to adapt those rules to the new models of digital service provision and to introduce legal safeguards against the risks associated therewith.
The choice of a Regulation as an EU legal instrument should also be considered appropriate. This will facilitate the achievement of the basic objective of the Digital Services Act, namely to harmonise the rules for the provision of services in the EU internal market.
In practice, interpretational problems will arise from the parallel application of Directive 2000/31/EC and the Digital Services Act. Their subjective scope is different. The provisions of the former apply to both content providers and online intermediaries, whereas the DSA obligations are addressed only to intermediary service providers.
It should be considered advantageous to reproduce, within the framework of the Regulation, the provisions on exclusion of liability of online intermediaries, previously in force under Directive 2000/31/EC.
An important novelty is the introduction of due diligence obligations for certain categories of online intermediaries, notably online platforms. This reflects the concept of organisational control of platforms over the content posted in their resources. Fortunately, the scope of these obligations varies according to the type and scale of activity of an entity concerned (principle of proportionality).
Utmost risks to individual and social interests are linked with the operation of very large online platforms and very large online search engines. It is therefore justified, as the European legislator has done, to lay down additional obligations, including prevention of so-called systemic risks.
The weakness of the current legal situation in the digital services market is the lack of functioning, also in Poland, of a supervisory authority (regulator). Neither international cooperation in this area has worked in practice. It is therefore a good thing that the provisions of the Digital Services Act made it mandatory for each Member State to appoint a Digital Services Coordinator and set out the instruments for international cooperation in this area. On the other hand, the DSA envisages as one option a rather complex model for supervision of the digital services market, which may be exercised by several national authorities, with only (one) Digital Services Coordinator representing the Member State „externally”. In practice, such a model may lead to complications, e.g. when proceedings before these authorities are subject to different procedures. It is therefore all the more regrettable that the Polish government has not prepared, despite the lapse of two years since the entry into force of the DSA regulations, a draft national law regulating, inter alia, the issue of a coordinating body, as well as related procedural provisions.