The Digital Services Act – a regulation that leaves nothing to the imagination

In the UK, when people say they are being doubly cautious on a matter, they might say that they are ‘wearing both belt and braces’. It’s a quirky old expression that describes someone who would rather wear both than risk their trousers falling down. And while it’s quite amusing, it’s also a fairly apt, if simplistic, way to describe the introduction of the Digital Services Act (or DSA). If you think about the current ecommerce regulations in Europe as the belt, the DSA will be the braces.

It’s basically a revision to the existing law in Europe and incredibly important for businesses who sell or offer products or services online – and the people who spend with them. Because, much like the real world, there are a mixture of good and bad people and organisations. Most use online platforms inoffensively, taking to social media for its intended purpose, or, like us, selling goods and services fairly and legitimately. But as we well know, not everyone conducts themselves appropriately. Some use social media and websites to spread hatred, share illegal material or commit fraud. This is obviously awful, and worse still, it is incredibly hard to police, despite the best efforts of Europe-wide law enforcement.

And while the DSA is currently only in the consultation stages (because, like any legislation, it’s a thorny and complex undertaking), it will affect a huge number of organisations, businesses, countries and consumers. So, to understand what it is and why all this work is necessary, it’s probably more useful to describe how things operate now – and what will change in the future.

Today: not pandemonium, but not perfect

You can think about the internet in Europe as a huge, but disorganised outdoor arena, where you can get a stall from any number of Internet Service Providers (ISPs) who provide the space for you to communicate and trade. This might take the form of a website, through establishing links on a sales platform or by creating social media accounts. Some ISPs might charge you a fee and take basic details, like a phone number. Another might simply ask for your email address. Others may be more scrupulous and offer equipment hire, signs for your stall (like a web banner, for example) and want to see what you’ll be sharing in the market – all for a fee, of course.

Once you’re in, however, there can be few legal checks to see if you’re conducting yourself properly. You can sell goods, express opinions and share images. If you’re not making sales, you might even pay the platform to shout about what you’re selling. Most people conduct their business perfectly well and act within the law, but many don’t. And, by and large, it’s in the hands of visitors to the site to make it known if a seller or operator on a platform is acting improperly or illegally.

Visitors can be anyone – deliberate shoppers, intrigued browsers. Or they maybe there in an official capacity, making checks that no one is breaking the law by saying, doing or selling something they shouldn’t be. But there are also brand guardians in the crowd, keeping their eyes peeled to make sure that where their products are being sold, they are the real deal and being presented to customers in the proper way. If any visitor has a concern about what they’re seeing, let’s say that someone has a stall selling highly offensive books, then they can report the seller to the ISP, who are legally obliged to remove the illegal content or products and potentially work with police to ensure that they are dealt with appropriately.

But let’s put a bit of real-world context around this. People can and do use platforms to incite hatred, trade images of child abuse, sell and advertise fake goods, defame people and share beliefs that are… well, simply unjustifiable, shocking and illegal. When they are discovered and reported, they are banned from sites, blocked by ISPs and investigated by police. The problem is, there’s a long, long queue outside of people willing to jump into the empty space. And some of them will be pretty unpleasant too. Ultimately, there’s an endless cycle of ‘discover – report – remove’, which begs the question: Why don’t the gatekeepers do better checks?

Tomorrow: belt, braces and better protection for all

In the simplest terms, The Digital Services Act seeks to ensure that the ISP gatekeepers to the internet (that is, social media and ISPs operating in Europe) take measures to know their ‘clients’ (e.g. sellers) better. Content creators of any kind – whether that be someone who starts an ecommerce website or just opens a social media account – will be required to share more essential information with these platforms before they are allowed to access and use the services. This brings about an additional layer of responsibility and accountability that we already see in offline life. For example, if you want to open a shop, there are a world of regulations and mechanisms in place that protect landlords, consumers and even the retailers themselves. Equally, non-internet-based public forums for publishing and broadcasting are governed by strict regulations around content. The DSA also seeks to bring further clarity in the European Union to what is acceptable and what is not, while setting out procedures that are fair and reasonable for all parties. It’s a big ask, which is why the process will take a while.

Why now?

There’s also a big question here of who is making money and who is spending it. One of the drivers here is that ‘policing’ the internet for illegal activity costs a great deal of money. Brands, such as Canon and our fellow members of anti-counterfeit organisations, such as the Imaging Consumables Coalition of Europe, Middle East and Africa (ICCE) and the Together Against Counterfeiting Alliance, are collectively engaged in the almost endless task of seeking, identifying and reporting illegal sellers, traders or brand imposters. The costs involved in protecting our brands and other rights is staggering. Not only that, but platforms who generate revenue through advertising are making money through ads directing their users to sites that sell counterfeit goods and other, even more dangerous, items. At the moment, ISPs and social media sites are only responsible for removing illegal content once it has been flagged, but by this point they may well have already benefited financially from its existence.

At the most fundamental level, it’s all about protection. By putting in additional checks and measures and all parties working together it is hoped that the DSA will further protect internet users from harm – whether they’re shopping, selling or socialising. We hope it will protect brands, like ourselves, from the effects of counterfeit and fraudulent activities, and give renewed confidence to everyone who shops online.   

To find out more about the Digital Services Act, visit the European Commission website.