Digital Services Act & Discord

What is the Digital Services Act? What does it mean? How does it affect Discord? In this article, we're going to simplify the Digital Services Act (DSA) & explain what your rights under it are.

This is a big topic, and the first time we've delved into legal topics on the PNLY Blog, so we've consulted a lawyer specializing in data privacy for the information throughout this article.

Legal Disclaimer: This article is written solely for general information purposes and should in no way be considered as a resource for legal advice/action/inaction. For any legal assistance make sure to consult with a lawyer or other legal professionals.

Everything highlighted like this has been communicated from the lawyer we consulted.

What is the DSA?

The Digital Services Act was made 20 years after the original EU framework for digital commerce (Directive 2000/31/EC) which laid the foundation for this legislation.

Its goal is essentially to safeguard EU citizens rights (as stated in the EU charter of fundamental rights 2000/C 364/01 and other EU legislations) when using Digital Services and more importantly intermediary services within the EU between them and other users in regards to both personal and professional transactions/interactions for anything that might be considered illegal both on an Union level as well as a national level of the member states.

There's an important note in there, the DSA is EU legistlation, that only affects EU citizens. Based on Cloudflare analytics, a lot of the readers on this blog are from the EU, but there's also a large portion of readers in the US & UK. Unfortunately those in America, the United Kingdom and other non-EU states cannot benefit from the rights granted in the DSA - but more on that later.

If you're curious about how we collect analytics from Cloudflare, read our article on why we don't serve cookies.

What are your rights?

The DSA grants a lot of rights, here's the most important ones:

The most fundamental rights the Digital Service Act grants to a user (recipient) are the following:

• The right of points of contact (article 12) the user must have a user-friendly way that is not solely automated in which they can communicate directly with the intermediary service. The point of contact must also be public and easily accessible as well as kept up to date.

• The right of access to a legal representative (article 13) the intermediate service must make sure that if they do not have an establishment in the EU they must make sure there is a legal representative in one of the member states they offer their services for the user to contact.

• The right to terms and conditions (article 14) the user must have access to information that the provider of the intermediary service considers unlawful in relations to their service (terms of service) and disregarding those may lead to restriction of usage upon that service.

• The right to public transparency reports (article 15) the user must have access to public transparency reports that are posted at least once a year in relations to content moderation the intermediary service has engaged in the last year ether with automated services or otherwise in regards to illegal content and its categories.

• The right of notice and action mechanism (article 16) maybe one of the most important rights related to this act is the right of the user to have access of mechanisms put in place by the intermediary service in order to report illegal content in a easy to access and friendly-user environment. This is essentially an extension to the first right under article 12 but in regards to reporting illegal content which is the core function of this act.

• The right of statement of reasons (article 17) the user has a right to be informed of the reasons in a clear and specific manner the intermediate service has imposed restrictions to the user upon realizing illegal content has taken place or a breach of their terms of service.

• The right of an internal complaint-handling system (article 20) the user has a right of access to a system that is electronic and free of charge to lodge a complaint towards the intermediary service within 6 months of the imposed restriction in order to appeal the decision taken due to possibly illegal content or actions violating their terms of service.

• The right of online protection of minors (article 28) providers of online platforms (intermediary services) must put in place measures appropriate to ensure minors have a high level of privacy, safety and security within their service. Note that this right does not obligate the provider to ask for personal data in order to verify if a user is a minor (article 28 paragraph 3).

• The right to information (article 32) in case the user concludes a contract with traders and the provider becomes aware that an illegal service or product has been offered with that trader the user has the right to be informed of the illegal service or product, the identity of the trader and any relevant means for the user to request reimbursement from said trader. Note that this right is abolished should the provider become aware of the illegality of the trader after 6 months of the transaction.

• The right to lodge a complaint (article 53) the user has the right to lodge a complaint to the Digital Services Coordinator (which is an independent organization) assigned by its member state (which is an obligation of the member state) for any violations of the Digital Service Act that are committed by an intermediary service.

• The right to compensation (article 54) users have the right to ask for compensation in accordance to EU and national law should the intermediary service violate the DSA.

There are other rights in relation to this act however these are the most important ones in relation to the users or recipients of the service with the intermediary service or online platform.

That's a lot of rights! So let's break this down a little.

The right of points of contact (article 12) & The right of access to a legal representative (article 13) are both requirements that most services already provide. All large online services will have some [email protected] email, and [email protected] address as public points of contact. They may also host support & reporting forms for similar contact. Additionally, The right to terms and conditions (article 14) is something all services will provide due to existing international legislation. Make sure to read the Terms Of Service before signing up to anything, they'll often include very important information like opt-outs for arbitration.

The right to public transparency reports (article 15) is the first right that isn't already widely covered by existing international legislation, transparency reports have been a common practice for large digital service providers, with companies like Discord and Twitch having a strong history in this area.

The right of online protection of minors (article 28) is another one that many Digital Services are already adhering to, thanks to COPPA laws & similar international laws. Many Digital Services will impose an age restriction to prevent the handling of minors' data. Those that don't often put in place additiona; account restrictions & security measures, such as those imposed on <13 accounts on Roblox.

The next set of rights are very important, so we're gonna cover them in their own section.

Reporting & Appealing under DSA

The DSA grants a number of rights pertaining to reporting illegal content to Digital Services. The right of notice and action mechanism (article 16) is the cornerstone of this:

The right of notice and action mechanism (article 16) maybe one of the most important rights related to this act is the right of the user to have access of mechanisms put in place by the intermediary service in order to report illegal content in a easy to access and friendly-user environment. This is essentially an extension to the first right under article 12 but in regards to reporting illegal content which is the core function of this act.

It's important to note that this right only covers illegal content, which can be anything from scamming operations to illegal adult content. Most sites now provide a standalone reporting page for this purpose, with a friction-free reporting flow disparate from the sometimes obfuscated and confusing reporting flows used for normal reporting on the relevant platforms. We've previously covered Discord's reporting flows and the changes they've gone through, you can read more about that here.

But what if you're the one getting reported? This is where the next few rights come into play. The right of statement of reasons (article 17) Requires the Digital Service to clearly state why your account was restricted and the nature of the restriction. If you feel this action was taken in error - or that the action is unfair, The right of an internal complaint-handling system (article 20) grants you the right to appeal this decision within 6 months. It's notable that many Digitial Services including Discord extended their appeal time to 6 months globally to adhere to this.

The right to information (article 32) covers another situation that can occur on Intermediary Services. Let's say you buy some digital collectibles from someone on an online forum. The forum is later made aware that those collecitbles are stolen, and takes action against the trader. You have a right to information about the trader to chase your own reimbursement for the illegal goods. This is especially important for online marketplaces like eBay.

What if the Digital Service doesn't adhere to DSA?

the DSA grants two very important rights here, The right to lodge a complaint (article 53) grants users the right to complain about a Digital Service's non-compliance. This can be as simple as the required DSA reporting page not working, or the Digital Service not responding to an appeal under The right of an internal complaint-handling system (article 20). If the Digital Service's failure to adhere to DSA causes you personal or professional costs, The right to compensation (article 54) also grants you the right to seek compensation. Doubling back on the eBay example, if your eBay account is wrongfully restricted for a listing you made, and eBay fails to recieve your appeal - costing you in lost sales - you may be protected by this right. It's important to remember that this is a generalized example, and is NOT legal advice. For any legal assistance make sure to consult with a lawyer or other legal professionals.

What services does the DSA apply to?

The DSA applies to Digital Services and Intermediary Services:

Its goal is essentially to safeguard EU citizens rights (as stated in the EU charter of fundamental rights 2000/C 364/01 and other EU legislations) when using Digital Services and more importantly intermediary services within the EU between them and other users in regards to both personal and professional transactions/interactions for anything that might be considered illegal both on an Union level as well as a national level of the member states.

But what's an Intermediary Service?

Definition of an intermediary service

An intermediary service as stated under the Digital Services Act is a communication network that consists one of the following:

• A conduit service which means the transmission of information from the recipient of the service to the service itself and/or the access of that information to a communications network. The intermediary service itself must not initiate the transmission itself, select the recipients or modify the information sent otherwise it’s liable to its content.

• A caching service which is the transmission of information by the recipient of the service that is temporary, automatic and intermediate storage of that information solely so other recipients can receive this information upon demand. The intermediary service must not modify the information, change the recipients who have access to the information, must comply with industry standards on the updating of the information and on not interfering with the lawful use of the technology, acts immediately to remove or disable access to the information upon request by the recipient or judicial/administrative authority’s to remove it in order for it not to be liable for its content.

• A hosting service essentially is the simple storage of information at the request of the recipient of the service. The intermediary service isn’t liable as long as it does not have actual knowledge of illegal activity or content stored and is unaware of the circumstances on which it could be considered illegal.

Something like a chat platform - for example Discord - would be considered an Intermediary Service under the DSA.

But what about Discord? Let's get into that.

The DSA & Discord

As Discord is by the definition of the Digital Service Act an “intermediary service” or “online platform” its articles apply on the platform so users interacting with its services in the EU have the rights aforementioned.

So, Discord is covered by the DSA, how do they adhere to it?

As it stands Discord has a separate report feature to abide by the Digital Services Act as well as other articles and systems in place to comply with this act.

Discord has a dedicated page for this purpose. It's worth noting that this page only works if Discord detects you're fetching it from within the EU.

Additionally, Discord has a page explaining DSA resolution options:

So Discord lays out your options to appeal, as well as your options to report. Awesome! And if Discord ever fails their obligations, which they certainly don't seem to:

In any case if any of its features/actions are inadequate the user can report Discord to its local member state Digital Services Coordinator as stated in the DSA act. That Digital Services Coordinator can then ether reprimand Discord by itself after inspection or query to the provider or: coordinate with another Digital Services Coordinator in another member state, consult the European board of Digital Services which is founded by this act (and acts as a board to the member states Digital Services Coordinator in regards to recommendations) or finally refer to the European Commission.

Discord seems markedly committed to upholding the DSA, releasing a dedicated article on their efforts to comply with and uphold users' rights.

While these rights don't apply to those outside of the EU, hopefully these improvements to the ability to report and the ability to appeal are taken up in legislation elsewhere in the world, like the United States, United Kingdom, and states in Oceania & Asia. The UK has it's Online Safety Act, which while not granting the same rights as the DSA, sets a staging ground for similar legislation in the future.

As a final reminder:

This article is written solely for general information purposes and should in no way be considered as a resource for legal advice/action/inaction. For any legal assistance make sure to consult with a lawyer or other legal professionals.

We're deeply grateful to Space Wolf for assisting us in making this article. A subject like this deserves all the legal wherewithall possible, and it would be impossible without them!