Internet Regulation Updater

The EU Commission has published a draft implementing regulation for the Digital Services Act. There is one month to respond to the consultation (16 March): Digital Services Act – implementing regulation (europa.eu).

The draft relates to the powers of the Commission to: conduct inspections (Art 69 DSA) and use auditors/experts to support on compliance monitoring actions (Art 72 DSA). It also sets out the details of the right to be heard in response to preliminary findings by the Commission and access to the Commission’s file (including trade secrets concerns) (Art 79).

Art 69: Inspections

The issue – the Commission can conduct an inspection and can ask for explanations of facts or documents, including from staff. Providers or those questioned can rectify answers provided within a certain time limit. Fines can be imposed if corrections are not made.

The draft – provides for a record of explanations given during an inspection to be provided to the provider and establishes the procedure for corrections to be made.

Art 72: Suitability of experts/auditors assisting the Commission

The issue – the Commission is empowered to monitor DSA implementation and compliance. This includes requiring access to and explanations of databases and algorithms. The Commission can appoint external experts and auditors to assist.

The draft – provides requirements for the independence and expertise of the experts/auditors. Those experts/auditors needs to be independent from the provider and have expertise and knowledge. The Commission will take into account on independence, among other things, shared resources with the provider and contracts with the provider from the previous two years. Expertise needs to be “proven”, as does technical competence.

Art 79: Right to be heard and file access

The issue – Art 79 gives a right to be heard to the recipient with respect to the Commission’s preliminary findings and any measures the Commission intends.

The draft – to ensure fair and efficient proceedings, the draft sets out the rules on format, length and language of the recipient’s response. The Commission is also required to assess access to documents on its file by balancing the need for that document in relation to the right to be heard versus the harm to the document owner of disclosure (including trade secrets concerns).

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