Digital Services Act (DSA)

What the Digital Services Act Does

The Digital Services Act (Regulation 2022/2065) is the EU's framework for regulating digital services and online platforms. It replaced the e-Commerce Directive (2000/31/EC) as the primary law governing platform liability and content moderation in the European Union.

The DSA applies to four categories of digital services, with obligations scaling by size and risk:

• Intermediary services (internet access providers, DNS services)
• Hosting services (cloud providers, web hosting)
• Online platforms (marketplaces, social media, app stores)
• Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs) — those with 45 million or more monthly active users in the EU

As of 2024, the European Commission has designated 29 VLOPs and VLOSEs, including Amazon, AliExpress, Google Search, Meta (Facebook and Instagram), TikTok, and X (formerly Twitter).

The Notice-and-Action Framework

Article 16 of the DSA establishes a standardized notice-and-action mechanism. Anyone can submit a notice to a platform about content they consider illegal. The notice must include:

• An explanation of why the content is considered illegal
• The electronic location (URL) of the content
• The name and email address of the submitter
• A statement confirming the good faith belief that the information is accurate

Platforms must acknowledge receipt, process notices in a timely and non-arbitrary manner, and inform the notifier of their decision with a statement of reasons.

This is a significant change from the previous framework under the e-Commerce Directive, which did not specify notice requirements or mandate transparency in platform decisions.

Trusted Flaggers

Article 22 introduces the Trusted Flagger status. Digital Services Coordinators (DSCs) in each EU Member State can designate entities that meet three criteria:

1. Expertise in detecting, identifying, and notifying illegal content
2. Independence from any online platform
3. Accuracy and objectivity in submitting notices, demonstrated through a track record

Notices from Trusted Flaggers must be processed by platforms with priority — meaning faster review and action compared to standard notices. Trusted Flaggers must publish annual reports on their activities.

For brand protection, Trusted Flagger status is valuable because it creates a recognized fast-track channel for removing counterfeit listings and trademark-infringing content across EU-regulated platforms.

Enforcement and Penalties

Non-compliance with the DSA can result in fines of up to 6% of a platform's global annual turnover. For VLOPs, the European Commission has direct enforcement authority. For smaller platforms, enforcement sits with the Digital Services Coordinator in the relevant Member State.

The DSA also gives users the right to lodge complaints with their national DSC and to seek out-of-court dispute resolution through certified bodies.

DSA vs. DMCA: Key Differences

Feature	DMCA (US)	DSA (EU)
Scope	Copyright only	All illegal content (counterfeit, trademark, fraud, etc.)
Mechanism	Notice-and-takedown	Notice-and-action
Counter-notice	Yes, formal process	No formal counter-notice; statement of reasons required
Priority channel	None	Trusted Flagger system
Transparency	Limited	Mandatory transparency reports and statement of reasons
Penalties	Statutory damages for false claims	Up to 6% of global annual turnover

Why the DSA Matters for Brand Protection

The DSA changes the enforcement landscape for brand owners in several ways:

1. Broader scope than copyright-only tools. Unlike the DMCA, the DSA covers trademark infringement, counterfeit goods, and scam content — the full range of brand threats.
2. Standardized process across 27 EU markets. Instead of navigating different rules per country, brand owners can use one framework across the EU.
3. Trusted Flagger fast-track. Entities with this designation get priority processing, reducing the time between detection and removal.
4. Platform accountability. VLOPs must conduct annual risk assessments for systemic risks including counterfeiting, and implement mitigation measures.

The DSA does not replace existing IP enforcement mechanisms like UDRP or national trademark law — it adds a complementary layer specifically for content hosted on online platforms.