DIGITAL SERVICES ACT
gambling operators thriving across major platforms, yet the Commission’s reaction so far has been measured rather than proactive. The result is a framework that can identify responsibilities in the abstract but struggles to convert them into timely, sector-specific action. DSA obligations and the scale of unlicensed gambling The DSA tackles illegal online content through a framework that applies horizontally, across every sector, gambling included. That breadth is one of the Regulation’s great strengths, but it is also precisely where the difficulty for gambling arises: illegality here does not turn on the DSA’s own terms, but on sector-specific licensing rules that vary from one member state to the next. The Regulation builds a graduated system of obligations for intermediary service providers, distinguishing between mere conduit, caching and hosting services. For hosting providers, including platforms that host user-generated content promoting gambling services, Article 6 of the DSA 5 sets the conditions for the liability exemption: providers must act promptly to remove or disable access to illegal content once they obtain actual knowledge of it. More specifically, the DSA imposes upon hosting service providers a duty to implement notice-and-action mechanisms pursuant to Article 16 6 , enabling any individual or entity to notify the platform of the presence of information considered to be illegal content. Where such notifications are sufficiently precise and adequately substantiated, the platform is required to take a decision on the notified content in a timely, diligent, non-arbitrary, and objective manner. On paper, this mechanism can reach content promoting unlicensed gambling services, which constitutes illegal content under the national laws of virtually all member states that regulate gambling through licensing regimes. In practice, however, the mechanism places considerable weight on the notifier’s ability to establish the relevant licensing position and on the
platform’s ability to assess it across jurisdictions.
For Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs), those reaching more than 45 million monthly active users in the Union, the DSA imposes additional obligations under Articles 33 to 43 7 . These include mandatory annual risk assessments addressing systemic risks arising from the design, functioning, and use of their services, including risks related to the dissemination of illegal content. VLOPs must also implement reasonable, proportionate, and effective mitigation measures to address identified systemic risks, and submit to independent audits of their compliance with these obligations. These obligations appear substantial, but their practical force depends on whether gambling-related risks are identified with sufficient specificity and followed through with measures capable of disrupting promotion at scale. Limitations of the DSA framework in the gambling context While the DSA establishes a horizontal framework for addressing illegal content online, its effectiveness in the gambling sector is constrained by the interaction between EU platform regulation and the predominantly national regulation of gambling. This is a structural limitation, not merely an operational inconvenience. The difficulty is not that gambling falls outside the DSA’s scope. Rather, the problem is that determining whether gambling-related content is unlawful frequently depends on national licensing rules requiring knowledge that the DSA’s general mechanisms do not themselves provide. This creates an enforcement gap between the identification of potentially illegal gambling content and the determination that such content is unlawful under the applicable national regulatory framework. The limitations of the DSA’s notice-and-action mechanism are particularly apparent in this context. Article 16 requires
5 European Union (2022) Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union, L 277, 27 October, pp. 1–102. Available at: https://www.eu-digital-services-act.com/Digital_Services_Act_Article_6.html 6 European Union (2022) Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union, L 277, 27 October, pp. 1–102. Available at: https://www.eu-digital-services-act.com/Digital_Services_Act_Article_16.html 7 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services (Digital Services Act), OJ L 277, 27 October 2022, Arts. 33–43
PAGE 18
IMGL MAGAZINE | SEPTEMBER 2026
Made with FlippingBook flipbook maker