On 19 October 2022, the long-awaited regulation of the European Union, referred to in short as the Digital Services Act, entered into force. We recall that in cases where the European legislator chooses the form of a regulation for a legal norm, its transposition into the national legal orders of the Member States is no longer necessary (unlike a directive). The Digital Services Act will thus become directly applicable in the territory of the Czech Republic on 17 February 2024.
The new legal regulation will not directly apply to traders engaged in the sale of tangible goods in the internet environment. Its primary impact is on so-called providers of information society services. In practice, these are mainly entities that work with third-party content in their activities (hosting companies, intermediary platforms, social networks, etc.). This means that the influence of the new regulation on the activities of internet traders will be indirect at most, as it establishes obligations for providers of online platforms. This naturally applies only to those traders who use these platforms when selling goods.
The obligations of providers of online platforms that enable consumers to conclude distance contracts with traders (for example, Amazon Marketplace) are concentrated in the provisions of Articles 30 to 32 of the Digital Services Act. These obligations apply to operators of so-called very large online platforms and to all other operators of online platforms that are not micro-enterprises or small enterprises.
According to Article 30 of the Digital Services Act, which regulates the so-called traceability of traders, providers of online platforms will be obliged to carry out proper identification of traders. Before allowing the trader in question to use its services, the provider of the online platform shall “make its best efforts and assess whether the information … is reliable, through the use of any freely accessible official online databases … or by requesting the trader to provide supporting documents from reliable sources. Traders shall be responsible for the correctness of the information provided for the purposes of this Regulation.” The obtained information on the identity of the trader must then be made accessible by the platform provider to consumers.
The provision of Article 31 of the Digital Services Act then addresses the obligation of providers of online platforms to enable traders to fulfil their legal obligations towards consumers. This means, in particular, enabling the proper display of mandatory “pre-contractual information and information on product compliance with regulations and product safety.” The basic promotion of the trader should also be enabled in the form of the possibility to place on the platform “any sign identifying the trader, including a trademark, symbol or logo…”. Providers of online platforms will additionally have obligations to make their best efforts to assess whether traders have actually provided consumers with the required information.
The provision of Article 32 of the Digital Services Act then establishes a new information obligation of the provider of an online platform towards consumers in the event that it becomes aware that a “trader offered … to consumers in the Union an illegal product or service.”
In conclusion, it may be summarised that the Digital Services Act should not directly affect internet traders, especially those who do not use online platforms for the sale of goods. Conversely, those members of APEK who store third-party content in their activities should pay increased attention to the new obligations arising from the Digital Services Act.
Josef Aujezdský
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal newsletter No. 01/2023 intended for members of this association.
This text was translated from Czech to English using an AI translator.