Designating Large Platforms Under The DMA And The DSA: Comparing Apples and Oranges?

By: Konstantina Bania (The Platform Law Blog)

The Digital Markets Act (“DMA”) and the Digital Services Act (“DSA”) will soon start to apply. Broadly speaking, both instruments have the same objective, which is to address concerns arising from the increasing reliance on online platforms. However, despite being presented as parts of the same “package”, the DSA and the DMA do not have many similarities because they target different problems. The DMA imposes obligations to protect businesses and consumers against unfair platform practices. The DSA imposes obligations for a “safe, predictable and trusted online environment” through a framework for conditional liability exemptions and rules on due diligence obligations. In other words, the DMA primarily seeks to improve market conditions whereas the DSA, which is essentially content regulation, attempts to strike a balance between restricting the dissemination of illegal content online and the effective exercise of fundamental freedoms (e.g., freedom of speech, freedom to conduct business). The two instruments are also based on a different logic. The DMA only applies to “gatekeeper” platforms, that is, platforms that act as gateways between businesses and consumers. The DSA sets a baseline for all intermediaries and adopts a “graduated” approach whereby the rules become stricter depending on the category to which an intermediary belongs (intermediaries; intermediaries that are hosting service providers; hosting service providers that qualify as online platforms; and very large online platforms). 

However, the DMA and the DSA have certain similarities with respect to the regulation of the large service providers that fall under their scope. The entire text of the DMA and Section 4 of the DSA are based on the premise that “gatekeeper platforms” and “very large online platforms” (or “VLOPs”) pose unique challenges that can only be addressed through rules that target them specifically. Both instruments are based on user thresholds to determine the size (and, by extension, the power) of platforms that should be subject to such rules and they both envisage a designation process. Such similarities may be the reason for the misunderstanding that platforms that fall under the scope of the DSA will certainly abide by the DMA. This may not necessarily be the case because the definitional criteria, the designation process, and the methodology to calculate the size of the platform concerned are different. This blog post discusses this issue, detangling the conditions and the process pursuant to which a platform may qualify as a gatekeeper or as a VLOP under the DMA and the DSA respectively…

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