The DSA and affected companies

The DSA is part of the European Union’s (EU) effort to modernise digital regulations, and applies to a variety of online services, including:

• Mere Conduit Services (e.g., internet access, content delivery networks, Wi-Fi hotspots)
• Caching Services (e.g., data storage service providers)
• Hosting Services (e.g., cloud services, web hosting)
• Online Platforms (e.g., marketplaces, app stores, collaborative platforms and social media network)

The DSA applies to companies globally, as long as they provide services to EU users. According to the DSA, companies must adhere to the terms and conditions outlined in their user agreements, particularly regarding restrictions placed on users. These rules typically include guidelines on acceptable content, user conduct, prohibited activities and the actions that can be taken in response to these violations.

When Can a Provider Suspend a User’s Account?

Under the DSA, online platforms can suspend a user’s account or activity only if the user has violated the platform’s terms and conditions or breached applicable legal obligations. Common platform violations that could lead to suspension include:

• Content sharing violations: posting harmful, illegal, or prohibited content. For example, a user repeatedly sharing explicit or hateful content may face suspension.
• Inappropriate behaviour: engaging in harassment, abuse, or disruptive actions, including repeated bullying, targeted abuse of other users, or users who consistently advertises fake products.
• Other prohibited activities: these could include fraud, spamming, or other violations outlined in the T&Cs.

These actions can lead to either a temporary or permanent account suspension, depending on the severity of the violation and the platform’s policies. However, as mentioned earlier, platforms can only take action if the violations are clearly stated in their T&Cs. This means platforms must ensure their T&Cs clearly outline the reasons for suspending an account. While the DSA doesn’t require an exhaustive or highly detailed list, it does require platforms to explain the reasons for suspension with enough clarity.

Therefore, it’s important to list the types of conduct and content that could lead to suspension and provide examples of what constitutes these violations to help guide users.

Can Suspension Be Automatic?

While suspensions can be triggered by violations of platform rules, they should not be automatic. Suspension is generally considered after repeated violations, and platforms must follow a fair and transparent process before suspending an account.

This process should involve issuing a prior warning to the user, notifying them that their account will be suspended if the violations persist. For example, platforms should send an email or another form of notification that explains the nature of the violation, outlines the potential consequences, and provides a reasonable time frame for the user to correct their behaviour. As a best practice, platforms should allow at least a few days (e.g., 2 to 5 days) for users to address the issue before taking further action, depending on the severity of the violation.

Suspension: Case-by-Case Assessment

When deciding to suspend a user’s account, platforms must carry out a thorough, case-by-case assessment. This means evaluating several factors, including the nature of the violation, its frequency, and any mitigating factors. For example, did the user act in good faith or take steps to resolve previous breaches? Is this a repeated violation?

Additionally, providers must make sure that false complaints (those made without a valid reason) are not processed. They should also explain in their terms and conditions how these complaints will be handled, including examples of what actions might be considered misuse of the complaint system.

Notice of Suspension – Statement of Reasons for Suspension

Under the DSA, suspension decisions must be accompanied by a statement of reasons. This means that if a platform decides to suspend a user, this statement should be provided to the user at the moment the restriction is imposed and should include:

• The facts and circumstances considered in making the decision, including whether the content is considered illegal or in violation of platform terms;
• The legal and/or contractual grounds for the decision, and why the content or behaviour is illegal or incompatible with platform rules; and
• Information about the user’s possibilities to seek redress.

Usually, platforms have templates based on the rules outlined above, which can be adapted depending on the specific case. It is important that the platform has a system in place to send this information at the moment the restriction is imposed. Without timely and proper communication, platforms risk non-compliance with the DSA’s requirements.

Internal complaints-system

Online platforms are also required to have an internal complaints system that allows users to challenge decisions to remove, disable, suspend, or terminate their access to services or their account. If an account or content is suspended or otherwise restricted, users must have the right to contest the decision. Users can file complaints directly with the platform, choose an out-of-court dispute resolution body, or seek redress through the courts.

How Can Logan & Partners Assist You?

If you would like to discuss how you can comply with your DSA obligations, or need help with your T&Cs, reach out and book a free initial consultation.