Source: OJ L 277, 27/10/2022, p. 1–102Current language: EN
- Digital services act
Basic legislative acts
- DSA regulation
Article 23 Measures and protection against misuse
Summary What does Article 23 of the DSA regulation say?
This article deals with the misuse of online platforms and their reporting mechanisms, establishing that providers of online platforms must have a suspension policy in place for bad actors.
It covers two distinct scenarios: users who repeatedly post manifestly illegal content, and individuals or entities who repeatedly submit notices or complaints that are manifestly unfounded.
In both cases, a prior warning must be issued before any suspension is enacted.
The article also lays out the factors platforms must weigh when making suspension decisions, and requires that the suspension policy be publicly documented in the platform's terms and conditions.
Important points:
- Providers of online platforms must suspend, after a prior warning, users who frequently post manifestly illegal content, and must equally suspend those who frequently submit manifestly unfounded notices or complaints through the mechanisms established under Articles 16 and 20.
- When assessing whether to suspend, providers must evaluate each case individually, considering factors such as the absolute and relative volume of offending content or notices, the gravity of the misuse, and the intention of the party involved.
- Clearly document your suspension policy in your terms and conditions, including examples of what constitutes misuse and the duration of potential suspensions.
Springlex's summary of the article is a reading aid, not a substitute for the legal text.
Providers of online platforms shall suspend, for a reasonable period of time and after having issued a prior warning, the provision of their services to recipients of the service that frequently provide manifestly illegal content.
Providers of online platforms shall suspend, for a reasonable period of time and after having issued a prior warning, the processing of notices and complaints submitted through the notice and action mechanisms and internal complaints-handling systems referred to in Articles 16 and 20, respectively, by individuals or entities or by complainants that frequently submit notices or complaints that are manifestly unfounded.
When deciding on suspension, providers of online platforms shall assess, on a case-by-case basis and in a timely, diligent and objective manner, whether the recipient of the service, the individual, the entity or the complainant engages in the misuse referred to in paragraphs 1 and 2, taking into account all relevant facts and circumstances apparent from the information available to the provider of online platforms. Those circumstances shall include at least the following:
the absolute numbers of items of manifestly illegal content or manifestly unfounded notices or complaints, submitted within a given time frame;
the relative proportion thereof in relation to the total number of items of information provided or notices submitted within a given time frame;
the gravity of the misuses, including the nature of illegal content, and of its consequences;
where it is possible to identify it, the intention of the recipient of the service, the individual, the entity or the complainant.
Providers of online platforms shall set out, in a clear and detailed manner, in their terms and conditions their policy in respect of the misuse referred to in paragraphs 1 and 2, and shall give examples of the facts and circumstances that they take into account when assessing whether certain behaviour constitutes misuse and the duration of the suspension.
Relevant recitals
Recital 63 Safeguards against misuse of platforms and mechanisms
The misuse of online platforms by frequently providing manifestly illegal content or by frequently submitting manifestly unfounded notices or complaints under the mechanisms and systems, respectively, established under this Regulation undermines trust and harms the rights and legitimate interests of the parties concerned. Therefore, there is a need to put in place appropriate, proportionate and effective safeguards against such misuse, that need to respect the rights and legitimate interests of all parties involved, including the applicable fundamental rights and freedoms as enshrined in the Charter, in particular the freedom of expression. Information should be considered to be manifestly illegal content and notices or complaints should be considered manifestly unfounded where it is evident to a layperson, without any substantive analysis, that the content is illegal or, respectively, that the notices or complaints are unfounded.
Recital 64 Suspension for repeated misuse of platforms
Under certain conditions, providers of online platforms should temporarily suspend their relevant activities in respect of the person engaged in abusive behaviour. This is without prejudice to the freedom by providers of online platforms to determine their terms and conditions and establish stricter measures in the case of manifestly illegal content related to serious crimes, such as child sexual abuse material. For reasons of transparency, this possibility should be set out, clearly and in sufficient detail, in the terms and conditions of the online platforms. Redress should always be open to the decisions taken in this regard by providers of online platforms and they should be subject to oversight by the competent Digital Services Coordinator. Providers of online platforms should send a prior warning before deciding on the suspension, which should include the reasons for the possible suspension and the means of redress against the decision of the providers of the online platform. When deciding on the suspension, providers of online platforms should send the statement of reasons in accordance with the rules set out in this Regulation. The rules of this Regulation on misuse should not prevent providers of online platforms from taking other measures to address the provision of illegal content by recipients of their service or other misuse of their services, including through the violation of their terms and conditions, in accordance with the applicable Union and national law. Those rules are without prejudice to any possibility to hold the persons engaged in misuse liable, including for damages, provided for in Union or national law.
Springlex and this text is meant purely as a documentation tool and has no legal effect. No liability is assumed for its content. The authentic version of this act is the one published in the Official Journal of the European Union.
Definition
recipient of the service
Definition
information society service
Definition
terms and conditions
Definition
intermediary service
- a ‘mere conduit’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network;
- a ‘caching’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients upon their request;
- a ‘hosting’ service, consisting of the storage of information provided by, and at the request of, a recipient of the service;
Definition
illegal content
Definition
online platform