On January 20, 2022, the European Parliament agreed amendments to the draft version of the Digital Services Act (“DSA”) that the Council agreed on November 25, 2021(see the European Parliament’s announcement here and agreed text here;  see our blog post about the Council’s draft here).  As a next step, the Parliament will discuss these amendments with the Council, with the goal of reaching a compromise text that both can adopt.

The amendments approved by the Parliament (see here) introduce several noteworthy changes to the Commission’s proposal.  In particular, on:

• targeted advertising – the agreed text:
  • provides for a high standard for consent and specifies, among other things, that it should be as easy for users to withdraw consent as it was to provide it;
  • requires providers of digital services to offer “options based on tracking-free advertising”; and
  • prohibits using personal data belonging to minors and special categories of personal data (as defined in the GDPR) for ad targeting purposes.
• free user choice – the agreed text:
  • prohibits deceptive or nudging-type techniques (“dark patterns”) that could distort or impair a user’s free choice, such as giving more visual prominence to a consent option or repetitively requesting or urging users to make a decision; and
  • provides that the Commission should be able to adopt a delegated act to define practices that may be considered as a dark pattern.
• terms and conditions – the agreed text requires that the terms and conditions be:
  • “user-friendly”, which includes providing them in the official languages of the Member States where the service is offered, or, in the case of a large online platform, in the official language of all the Member States; and
  • drafted using age-appropriate language where the digital service “is primarily directed at minors or is predominantly used by them”.
• complaints and redress – the agreed text:
  • provides that the digital service providers’ complaint handling process should allow users to submit their complaints by contacting “a human interlocutor”; and
  • users should be able to seek swift judicial redress in accordance with the laws of the Member States concerned.
• algorithm-based ranking – the agreed text:
  • requires digital service providers to disclose to users when their services involve algorithm-based decision-making systems and how this impacts the way information is displayed and presented to them. They are also required to describe the system’s parameters “in an easily comprehensible manner to ensure that the recipients understand how information is prioritized”; and
  • requires very large platforms to provide at least one system that is not based on profiling.

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We will continue to monitor and report on the legislative process of the DSA.