EUROPEAN UNION
are booked from the comfort of your desk. It has become increasingly convenient to navigate through the different products and services available in our digital society. But this transformation of our world brings challenges related to illegal content, user protection, and operational transparency. This also holds true for the lottery and gambling industry, which has seen a rapid evolution in how games are played. The European Union’s Digital Services Act (DSA) 1 , which entered into force in November 2022 (and for the most part became applicable in February 2024), seeks to address some of these challenges by establishing a comprehensive regulatory framework for digital services. The DSA is designed to regulate online intermediaries and platforms, including marketplaces, social networks, content-sharing platforms, app stores, and online travel and accommodation services. Its main objectives are to prevent illegal and harmful activities online, curb the spread of disinformation, ensure user safety, protect fundamental rights, and promote a fair and open online platform environment. The DSA applies to all digital services operating within the EU. It categorizes services into different tiers based on size and nature: • Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs) : Platforms reaching more than 10% of the EU’s population (approximately 45 million users) face specific rules due to their significant role in disseminating illegal content and societal harms. • Online Platforms : These include online marketplaces, app stores, collaborative economy platforms, and social media platforms. • Hosting Services: Services such as cloud and web hosting, including online platforms. • Intermediary Services: Entities offering network infrastructure such as internet access providers and domain name registrars, as well as hosting service providers.
Larger platforms face more stringent obligations under the DSA. VLOPs and VLOSEs must, for example, establish a point of contact for authorities and users, report criminal offenses, have sufficiently user-friendly T&Cs, and must be transparent in their functioning as regards advertising, recommendation algorithms or content moderation. DSA impact on gambling and lotteries Gambling or lottery operators are not really the target of the DSA thus it is not very likely that a gambling platform would be considered subject to the obligations imposed by the DSA. The main relevance of the DSA with regard to the gambling and lotteries industry is in the notion of illegal content that can be found online, and in the restrictions on advertising. The DSA mandates that all online platforms promptly remove any content deemed illegal under EU law. This includes illegal gambling operations, advertising promoting unlicensed gambling services, and also advertising making illegal use of a trademark (something we often see with the infamous “secondary lottery operators” that offer betting on lottery draws). The DSA does not define what is illegal, but it does set out a framework for how illegal content is tackled. The DSA will henceforth not define which gambling services are illegal as such. That is and remains a question of national law in each single Member State. In addition, the DSA provides for specific measures to protect minors and people in general from certain advertising practices, which may also impact gambling and lotteries advertising. Notice and take-down of illegal content The approach to the removal of illegal content from online platforms under the DSA was clearly inspired by the much older e-Commerce Directive 2 , but adds some significant compliance layers to the mix. Under the e-Commerce Directive, intermediary service providers have enjoyed
1 Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) 2 Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal
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IMGL MAGAZINE | SEPTEMBER 2024
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