Algorithmic recommendation

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Those diverging national laws negatively affect the internal market, which, pursuant to Article 26 of the Treaty on the Functioning of the European Union (TFEU), comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured, taking into account the inherently cross-border nature of the internet, which is generally used to provide those services.

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(5) This Regulation should apply to providers of certain information society services as defined in Directive (EU) 2015/1535 of the European Parliament and of the Council(5), that is, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient.

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A substantial connection should also be assumed where a service provider directs its activities to one or more Member States within the meaning of Article 17(1), point (c), of Regulation (EU) No 1215/2012 of the European Parliament and of the Council(6).

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This should not preclude the possibility of applying other national legislation applicable to providers of intermediary services, in compliance with Union law, including Directive 2000/31/EC, in particular its Article 3, where the provisions of national law pursue other legitimate public interest objectives than those pursued by this Regulation.

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This Regulation should also be without prejudice to Union rules on private international law, in particular rules regarding jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as Regulation (EU) No 1215/2012, and rules on the law applicable to contractual and non-contractual obligations.

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The protection of individuals with regard to the processing of personal data is governed solely by the rules of Union law on that subject, in particular Regulation (EU) 2016/679 and Directive 2002/58/EC.

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Interpersonal communication services, as defined in Directive (EU) 2018/1972 of the European Parliament and of the Council(24), such as emails or private messaging services, fall outside the scope of the definition of online platforms as they are used for interpersonal communication between a finite number of persons determined by the sender of the communication.

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(20) Where a provider of intermediary services deliberately collaborates with a recipient of the services in order to undertake illegal activities, the services should not be deemed to have been provided neutrally and the provider should therefore not be able to benefit from the exemptions from liability provided for in this Regulation.

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(22) In order to benefit from the exemption from liability for hosting services, the provider should, upon obtaining actual knowledge or awareness of illegal activities or illegal content, act expeditiously to remove or to disable access to that content.

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(28) Since 2000, new technologies have emerged that improve the availability, efficiency, speed, reliability, capacity and security of systems for the transmission, ‘findability’ and storage of data online, leading to an increasingly complex online ecosystem.

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(29) Intermediary services span a wide range of economic activities which take place online and that develop continually to provide for transmission of information that is swift, safe and secure, and to ensure convenience of all participants of the online ecosystem.

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However, this Regulation should be without prejudice to Union law in the field of judicial cooperation in civil or criminal matters, including Regulation (EU) No 1215/2012 and a Regulation on European production and preservation orders for electronic evidence in criminal matters, and to national criminal or civil procedural law.

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In addition, the orders should be issued in compliance with Regulation (EU) 2016/679 and the prohibition of general obligations to monitor information or to actively seek facts or circumstances indicating illegal activity laid down in this Regulation.

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Therefore, the rules set out in Article 3 of Directive 2000/31/EC, including those regarding the need to justify measures derogating from the competence of the Member State in which the service provider is established on certain specified grounds and regarding the notification of such measures, do not apply in respect of those orders.

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Finally, when applying this Regulation Member States should respect the fundamental right to an effective judicial remedy and to a fair trial as provided for in Article 47 of the Charter.

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(40) In order to achieve the objectives of this Regulation, and in particular to improve the functioning of the internal market and ensure a safe and transparent online environment, it is necessary to establish a clear, effective, predictable and balanced set of harmonised due diligence obligations for providers of intermediary services.

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(46) Providers of intermediary services that are primarily directed at minors, for example through the design or marketing of the service, or which are used predominantly by minors, should make particular efforts to render the explanation of their terms and conditions easily understandable to minors.

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(47) When designing, applying and enforcing those restrictions, providers of intermediary services should act in a nonarbitrary and non-discriminatory manner and take into account the rights and legitimate interests of the recipients of the service, including fundamental rights as enshrined in the Charter.

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(49) To ensure an adequate level of transparency and accountability, providers of intermediary services should make publicly available an annual report in a machine-readable format, in accordance with the harmonised requirements contained in this Regulation, on the content moderation in which they engage, including the measures taken as a result of the application and enforcement of their terms and conditions.

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However, in order to avoid disproportionate burdens, those transparency reporting obligations should not apply to providers that are micro or small enterprises as defined in Commission Recommendation 2003/361/EC(25)and which are not very large online platforms within the meaning of this Regulation.

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Except for the submission of notices relating to offences referred to in Articles 3 to 7 of Directive 2011/ 93/EU of the European Parliament and of the Council(26), those mechanisms should ask the individual or the entity submitting a notice to disclose its identity in order to avoid misuse.

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For example, specific items of content could give rise to a suspicion of a threat to the public, such as incitement to terrorism within the meaning of Article 21 of Directive (EU) 2017/541.

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(57) To avoid disproportionate burdens, the additional obligations imposed under this Regulation on providers of online platforms, including platforms allowing consumers to conclude distance contracts with traders, should not apply to providers that qualify as micro or small enterprises as defined in Recommendation 2003/361/EC.

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For the same reason, those additional obligations should also not apply to providers of online platforms that previously qualified as micro or small enterprises during a period of 12 months after they lose that status.

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The possibilities to contest decisions of providers of online platforms thus created should leave unaffected in all respects the possibility to seek judicial redress in accordance with the laws of the Member State concerned, and therefore should not affect the exercise of the right to an effective judicial remedy under Article 47 of the Charter.

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(60) For contractual consumer-to-business disputes regarding the purchase of goods or services, Directive 2013/11/EU ensures that Union consumers and businesses in the Union have access to quality-certified alternative dispute resolution entities.

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(65) In view of the particular responsibilities and obligations of providers of online platforms, they should be made subject to transparency reporting obligations, which apply in addition to the transparency reporting obligations applicable to all providers of intermediary services under this Regulation.

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(66) In order to ensure transparency and to enable scrutiny over the content moderation decisions of the providers of online platforms and monitoring the spread of illegal content online, the Commission should maintain and publish a database which contains the decisions and statements of reasons of the providers of online platforms when they remove or otherwise restrict availability of and access to information.

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Those rules on dark patterns should be interpreted as covering prohibited practices falling within the scope of this Regulation to the extent that those practices are not already covered under Directive 2005/29/EC or Regulation (EU) 2016/679.

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(68) Online advertising plays an important role in the online environment, including in relation to the provision of online platforms, where the provision of the service is sometimes in whole or in part remunerated directly or indirectly, through advertising revenues.

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Finally, this Regulation complements the application of the Directive 2010/13/EU which imposes measures to enable users to declare audiovisual commercial communications in user-generated videos.

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(69) When recipients of the service are presented with advertisements based on targeting techniques optimised to match their interests and potentially appeal to their vulnerabilities, this can have particularly serious negative effects.

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Without prejudice to the definition provided for in this Regulation, any trader, irrespective of whether it is a natural or legal person, identified on the basis of Article 6a(1), point (b), of Directive 2011/83/EU and Article 7(4), point (f), of Directive 2005/29/EC should be traceable when offering a product or service through an online platform.

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The traceability requirements for providers of online platforms allowing consumers to conclude distance contracts with traders set out in this Regulation do not affect the application of Council Directive (EU) 2021/514(30), which pursues other legitimate public interest objectives.

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(76) Very large online platforms and very large online search engines may cause societal risks, different in scope and impact from those caused by smaller platforms.

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Such significant reach should be considered to exist where such number exceeds an operational threshold set at 45 million, that is, a number equivalent to 10 % of the Union population.

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(78) In view of the network effects characterising the platform economy, the user base of an online platform or an online search engine may quickly expand and reach the dimension of a very large online platform or a very large online search engine, with the related impact on the internal market.

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(79) Very large online platforms and very large online search engines can be used in a way that strongly influences safety online, the shaping of public opinion and discourse, as well as online trade.

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(84) When assessing such systemic risks, providers of very large online platforms and of very large online search engines should focus on the systems or other elements that may contribute to the risks, including all the algorithmic systems that may be relevant, in particular their recommender systems and advertising systems, paying attention to the related data collection and use practices.

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(86) Providers of very large online platforms and of very large online search engines should deploy the necessary means to diligently mitigate the systemic risks identified in the risk assessments, in observance of fundamental rights.

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(88) Providers of very large online platforms and of very large online search engines should also be diligent in the measures they take to test and, where necessary, adapt their algorithmic systems, not least their recommender systems.

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(89) Providers of very large online platforms and of very large online search engines should take into account the best interests of minors in taking measures such as adapting the design of their service and their online interface, especially when their services are aimed at minors or predominantly used by them.

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(91) In times of crisis, there might be a need for certain specific measures to be taken urgently by providers of very large online platforms, in addition to measures they would be taking in view of their other obligations under this Regulation.

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(92) Given the need to ensure verification by independent experts, providers of very large online platforms and of very large online search engines should be accountable, through independent auditing, for their compliance with the obligations laid down by this Regulation and, where relevant, any complementary commitments undertaken pursuant to codes of conduct and crises protocols.

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(96) In order to appropriately monitor and assess the compliance of very large online platforms and of very large online search engines with the obligations laid down by this Regulation, the Digital Services Coordinator of establishment or the Commission may require access to or reporting of specific data, including data related to algorithms.

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In this regard, whilst without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council(32), providers should ensure appropriate access for researchers, including, where necessary, by taking technical protections such as through data vaults.

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(98) In addition, where data is publicly accessible, such providers should not prevent researchers meeting an appropriate subset of criteria from using this data for research purposes that contribute to the detection, identification and understanding of systemic risks.

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(109) In order to ensure adequate oversight and enforcement of the obligations laid down in this Regulation, Member States should designate at least one authority with the task to supervise the application and enforce this Regulation, without prejudice to the possibility to designate an existing authority and to its legal form in accordance with national law.

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(110) Given the cross-border nature of the services at stake and the horizontal range of obligations introduced by this Regulation, one authority appointed with the task of supervising the application and, where necessary, enforcing this Regulation should be identified as a Digital Services Coordinator in each Member State.

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(124) In view of their potential impact and the challenges involved in effectively supervising them, special rules are needed regarding the supervision and enforcement in respect of providers of very large online platforms and of very large online search engines.

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(127) Given the cross-border and cross-sectoral relevance of intermediary services, a high level of cooperation is necessary to ensure the consistent application of this Regulation and the availability of relevant information for the exercise of enforcement tasks through the information sharing system.

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(130) In order to facilitate cross-border supervision and investigations of obligations laid down in this Regulation involving several Member States, the Digital Services Coordinators of establishment should be able, through the information sharing system, to invite other Digital Services Coordinators to a joint investigation concerning an alleged infringement of this Regulation.

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(131) In order to ensure a consistent application of this Regulation, it is necessary to set up an independent advisory group at Union level, a European Board for Digital Services, which should support the Commission and help coordinate the actions of Digital Services Coordinators.

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(136) In view of the need to ensure support for the Board’s activities, the Board should be able to rely on the expertise and human resources of the Commission and of the competent national authorities.

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(137) Given the importance of very large online platforms or very large online search engines, in view of their reach and impact, their failure to comply with the specific obligations applicable to them may affect a substantial number of recipients of the services across different Member States and may cause large societal harms, while such failures may also be particularly complex to identify and address.

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(139) In order to effectively perform its tasks, the Commission should maintain a margin of discretion as to the decision to initiate proceedings against providers of very large online platforms or of very large online search engine.

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The Court of Justice of the European Union should have unlimited jurisdiction in respect of fines and penalty payments in accordance with Article 261 TFEU.

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(147) In order to safeguard the harmonised application and enforcement of this Regulation, it is important to ensure that national authorities, including national courts, have all necessary information to ensure that their decisions do not run counter to a decision adopted by the Commission under this Regulation.

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(150) In the interest of effectiveness and efficiency, the Commission should carry out a general evaluation of this Regulation.

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Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council(34).

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It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better LawMaking(35).

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Member State concerned shall, without undue delay, transmit a copy of the order referred to in paragraph 1 of this Article to all other Digital Services Coordinators through the system established in accordance with Article 85.

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Member State concerned shall, without undue delay, transmit a copy of the order referred to in paragraph 1 of this Article to all Digital Services Coordinators through the system established in accordance with Article 85.

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This Section, with the exception of Article 24(3) thereof, shall not apply to providers of online platforms that previously qualified for the status of a micro or small enterprise as defined in Recommendation 2003/361/EC during the 12 months following their loss of that status pursuant to Article 4(2) thereof, except when they are very large online platforms in accordance with Article 33.

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Certified out-of-court dispute settlement bodies shall make their decisions available to the parties within a reasonable period of time and no later than 90 calendar days after the receipt of the complaint.

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In the case of highly complex disputes, the certified out-of-court dispute settlement body may, at its own discretion, extend the 90 calendar day period for an additional period that shall not exceed 90 days, resulting in a maximum total duration of 180 days.

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This Section shall not apply to providers of online platforms allowing consumers to conclude distance contracts with traders that previously qualified for the status of a micro or small enterprise as defined in Recommendation 2003/361/EC during the 12 months following their loss of that status pursuant to Article 4(2) thereof, except when they are very large online platforms in accordance with Article 33.

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As regards traders that are already using the services of providers of online platforms allowing consumers to conclude distance contracts with traders for the purposes referred to in paragraph 1 on 17 February 2024, the providers shall make best efforts to obtain the information listed from the traders concerned within 12 months.

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In particular, the provider concerned shall ensure that its online interface enables traders to provide information on the name, address, telephone number and email address of the economic operator, as defined in Article 3, point (13), of Regulation (EU) 2019/1020 and other Union law.

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In such a case, it shall adjust the number so that it corresponds to 10 % of the Union’s population in the year in which it adopts the delegated act, rounded up or down to allow the number to be expressed in millions.

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