EU DIGITAL
MARKETS AND SERVICES ACT
These legislations redefine digital services and markets within the EU but also have far-reaching implications for digital advertising and marketing practices globally.
GATE KEEPER CONCEPT
On 6 September 2023, the European Commission designated several gatekeepers for a total of 22 core platform services (CPSs). Gatekeepers have six months thereafter to comply with their DMA obligations, mainly related to competition and transparency. Online advertising services in themselves can be designated as CPSs, as in the case of Amazon Advertising, Alphabet/Google's CPS (Google Ads, Display & Video 360 (“DV 360”), Search Ads 360, Campaign Manager 360, Waze Ads, Google Ad Manager, AdSense for display and video ads and AdMob and where, essentially, it is advertising-related, Google Analytics), and Meta Ads.
GATEKEEPERS OBLIGATIONS TO
ADVERTISERS AND PUBLISHERS
provide information on a daily basis, free of charge, on each advertisement placed by the advertiser regarding:
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Price and fees paid by that advertiser
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Remuneration received by the publisher, and metrics on which each of the prices, fees and remunerations are calculate
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Access to the gatekeeper's performance measuring tools and data necessary for advertisers to conduct their own independent verification of the advertisements inventory, including aggregated and non-aggregated data, in such a way that advertisers can run their own verification and measurement tools to assess the performance of the gatekeeper's advertising platform.
DIGITAL SERVICE ACT OVERVIEW
Focused more on regulating online content, the DSA already applies to designated "Very Large Online Platforms" (VLOPs) and "Very Large Online Search Engines" (VLOSEs) with the average monthly active user-numbers exceeding 45 million.
On 25 April 2023, the Commission designated two VLOSEs, Google Search and Bing, and several VLOPs: Alibaba AliExpress, Amazon Store, Apple AppStore, Booking.com, Facebook, Google Play, Google Maps, Google Shopping, Instagram, LinkedIn, Pinterest, Snapchat, TikTok, Twitter, Wikipedia, YouTube and Zalando. Amazon and Zalando are currently judicially-appealing their designations to the EU Court of Justice.
There is some overlap between organisations designated as gatekeepers under the DMA and as VLOPs/VLOSEs under the DSA, but strictly the obligations are different and additive: they must comply with both laws, if subject to both.
The DSA defines "advertisement" as information designed to promote the message of a legal or natural person, irrespective of whether to achieve commercial or non-commercial purposes, presented by an online platform on its "online interface" (including websites, mobile apps) against remuneration specifically for promoting that information. So, political ads and ads by charities will also be caught.
The DSA's advertising provisions are relevant not only to VLOPs/VLOSEs, but also to other "online platforms" that offer services in the EU, being hosting services that, at the request of a recipient of the service (e.g. users including consumers and organisations), stores and disseminates information to the public. Dissemination to the public is a broad concept here – please see our previous DSA blog and DSA at-a-glance diagram (downloads a file).
Essentially, services enabling user-to-user content (including organisations-to-consumers, consumers-to-consumers and organisations-to-organisations) are online platforms, including many publishers and online marketplaces, with some exceptions such as online news sites allowing user comments.
Commission fines on online platforms under the DSA can reach 6% of turnover and 5% daily, or 1% of turnover/annual income, depending on the provisions infringed.
