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European Parliament Agrees Draft Digital Services Act

By Dan Cooper & Anna Sophia Oberschelp de Meneses on January 26, 2022
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On January 20, 2022, the European Parliament agreed amendments to the draft version of the Digital Services Act (“DSA”) that the Council agreed on November 25, 2021(see the European Parliament’s announcement here and agreed text here;  see our blog post about the Council’s draft here).  As a next step, the Parliament will discuss these amendments with the Council, with the goal of reaching a compromise text that both can adopt.

The amendments approved by the Parliament (see here) introduce several noteworthy changes to the Commission’s proposal.  In particular, on:

  • targeted advertising – the agreed text:
    • provides for a high standard for consent and specifies, among other things, that it should be as easy for users to withdraw consent as it was to provide it;
    • requires providers of digital services to offer “options based on tracking-free advertising”; and
    • prohibits using personal data belonging to minors and special categories of personal data (as defined in the GDPR) for ad targeting purposes.
  • free user choice – the agreed text:
    • prohibits deceptive or nudging-type techniques (“dark patterns”) that could distort or impair a user’s free choice, such as giving more visual prominence to a consent option or repetitively requesting or urging users to make a decision; and
    • provides that the Commission should be able to adopt a delegated act to define practices that may be considered as a dark pattern.
  • terms and conditions – the agreed text requires that the terms and conditions be:
    • “user-friendly”, which includes providing them in the official languages of the Member States where the service is offered, or, in the case of a large online platform, in the official language of all the Member States; and
    • drafted using age-appropriate language where the digital service “is primarily directed at minors or is predominantly used by them”.
  • complaints and redress – the agreed text:
    • provides that the digital service providers’ complaint handling process should allow users to submit their complaints by contacting “a human interlocutor”; and
    • users should be able to seek swift judicial redress in accordance with the laws of the Member States concerned.
  • algorithm-based ranking – the agreed text:
    • requires digital service providers to disclose to users when their services involve algorithm-based decision-making systems and how this impacts the way information is displayed and presented to them. They are also required to describe the system’s parameters “in an easily comprehensible manner to ensure that the recipients understand how information is prioritized”; and
    • requires very large platforms to provide at least one system that is not based on profiling.

*          *          *

We will continue to monitor and report on the legislative process of the DSA.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as the IAPP’s European Advisory Board, Privacy International and the European security agency, ENISA.

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Photo of Anna Sophia Oberschelp de Meneses Anna Sophia Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act…

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act, the European Health Data Space, and EU consumer protection law, including product safety, product liability, and consumer rights legislation. She focuses on the operational side of compliance — helping clients design policies and processes, draft documentation, and build the internal frameworks needed to meet regulatory requirements in practice.

She also advises on contentious matters, drawing on experience managing investigations before national regulators and proceedings before national courts and the Court of Justice of the European Union. She works closely with Covington’s disputes teams on matters at the intersection of regulatory compliance and litigation.

Read more about Anna Sophia Oberschelp de MenesesEmailAnna Sophia's Linkedin Profile
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  • Posted in:
    Antitrust, Competition and Trade
  • Blog:
    Inside Privacy
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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