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Coimisiún na Meán (CnaM), the Irish regulator responsible for overseeing online safety and digital services, announced yesterday that it has issued a number of voluntary information requests to a range of online platform providers, to examine their compliance with certain provisions of the Digital Services Act (DSA).
CnaM stated that this review is driven by concerns that users are experiencing difficulties in reporting illegal content and contacting platforms - concern informed in part by information CnaM has gathered through its contact centre and through complaints passed on by other European regulators.
These are not the first formal information requests which CnaM has issued in respect of DSA compliance. For example, CnaM publicly confirmed it issued an RFI to Meta in the wake of certain threats made to Simon Harris online. However this is the first time that CnaM has adopted what appears to be a coordinated approach across industry, investigating the same compliance requirements across a number of service providers at once.
Focus of RFIs
CnaM has outlined that the requests for information (RFIs) are focused on the requirements under two provisions of the DSA - Article 12 and Article 16.
1. Article 12 - requires online platforms to maintain a “single point of contact” allowing users of the service to communicate directly and rapidly with the service providers. The service provider must make information about how to access the single point of contact easily accessible to the public. (Notably Article 12 does not prescribe any rules or requirements in respect of how or when a service provider must respond to such communications).
2. Article 16 - requires online platforms to implement an easy-to-access and user-friendly mechanism for reporting illegal content. These mechanisms should allow any individual or entity to report content they consider illegal. Platforms are also required to notify the individual or entity of their decision regarding the reported content in a timely, diligent, non-arbitrary, and objective manner.
Platforms under review
CnaM confirmed in its statement that the relevant RFIs have been issued to twelve platforms established in Ireland. These include eight Very Large Online Platforms (VLOPs) and four non-VLOP services. “VLOPs” are platforms which have over 45 million average monthly users within the EU. The platforms under review are:
Supervision of VLOPs
Under the DSA, the EU Commission operates as the principal regulatory authority in respect of supervising and enforcing VLOP DSA compliance. The Commission has exclusive competence in respect of certain VLOP-specific obligations (set out in Section 5 of the DSA). In respect of the other DSA obligations the Digital Services Coordinator of the Member State where a VLOP is based may enforce the provisions of the DSA, provided the Commission has not initiated proceedings for the same infringement.
Given that, CnaM may scrutinise compliance of VLOPs based in Ireland with Article 12 and 16, provided the Commission has not already initiated proceedings in relation to such requirements. CnaM notes in its announcement, in respect of some of the VLOPS which it has identified in this set of RFIs (i.e. Meta and Shein), it has not made inquiries in respect of Article 16 as both VLOPs are already the subject of a Commission investigation in respect of Article 16 requirements.
Potential consequences
CnaM will consider the responses received to its RFIs and assess whether it considers there may be any potential shortcomings in the online platforms compliance with the requirements. In its announcement, CnaM notes that, where the responses give rise to any compliance concerns it may issue a compliance notice to address such concerns.
Where a compliance notice does not produce sufficient improvements, CnaM may open a formal investigation. If such an investigation leads to a finding of non-compliance, CnaM can impose sanctions, such as a standalone fine or a daily financial penalty. Additionally, CnaM can also enter into a binding commitment agreement with a platform, in which the platform gives undertakings to bring its behaviour into compliance with the law.
Comments
CnaM’s approach is interesting in that it shows that it appears keen to use the still relatively new DSA powers which have been given to it within the sphere it is operating in, mindful of the Commission’s competence in supervising VLOPs.
If you would like any further information on DSA compliance requirements, please contact any member ALG’s Technology Group.
Date published: 13 September 2024
