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.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Giulia Romana Mele Giulia Romana Mele

Working on life sciences and data protection issues, Giulia Romana Mele supports pharmaceutical, food, and biotech companies in EU and Italian regulatory compliance, and assists clients in negotiating a rapidly-changing regulatory landscape affecting the use of existing and new technologies.

Giulia helps emerging…

Working on life sciences and data protection issues, Giulia Romana Mele supports pharmaceutical, food, and biotech companies in EU and Italian regulatory compliance, and assists clients in negotiating a rapidly-changing regulatory landscape affecting the use of existing and new technologies.

Giulia helps emerging and leading companies in the life sciences industry achieving their regulatory and commercial goals, identifying potential issues and developing risk-minimization solutions.

She further provides strategic advice to global companies on complying with EU, UK, and Italian data protection laws, with a focus on emerging issues in the AdTech environment.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.