19.03.2024

Law no. 50/2024 on establishing measures for the application of the Regulation 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC, as well as on amending and completing Law no. 365/2002 on electronic commerce has been published in the Official Journal no. 232 of 19 March 2024. The law designates the National Authority for Management and Regulation in Communications as Digital Services Coordinator and will enter into force within 3 days from its publication date.

The Digital Services Coordinator (DSC)

In its capacity as designated Digital Services Coordinator, ANCOM is the institution responsible for all aspects related to the supervision and observance of the Digital Services Act by the providers of intermediary services.

In order to exercise its attributions provided by the law, the Authority had carried out and submitted to public consultation four draft decisions that complement the primary legal framework: the draft decision on the information procedure applicable to intermediary service providers, the draft decision on establishing the complaint procedure for complaints dealing with digital services, the draft decision establishing the certification procedure for out-of-court dispute settlement bodies for disputes initiated against online platform providers and the draft decision on the procedure for the certification of trusted flaggers.

ANCOM is the single contact point for the implementation of the DSA and for the reporting of data and/or information to the European Commission and/or to the Digital Services Coordinators in the other Member States. The Authority is also a member of the European Board for Digital Services – an independent advisory body consisting of National Digital Coordinators, which will ensure collaboration through joint investigations, issue opinions and recommendations and promote the development and implementation of guidelines and reports on the topics covered by the Regulation.

Main provisions of the Law

The law establishes the necessary measures for the implementation of the Digital Services Act, designates the Digital Services Coordinator and adopts the sanctioning regime applicable in case of non-compliance with the obligations established under the DSA or under the law. Furthermore, the law creates a mechanism whereby the authorities or the public institutions with duties regarding certain sector or area of activity may issue orders to remove certain content considered illegal under national legal rules.

Providers of intermediary services

According to the law, the providers of intermediary services established in Romania or having their residence in Romania or their legal representative established in Romania have the obligation to send a notification to ANCOM within 45 days from the date of starting the provision of services, that is to include the provider's identification data and contact details for the efficient communication with the public institutions or authorities. Any changes thereto need also to be notified. The obligation to inform ANCOM also applies to the providers offering intermediary services on the date of entry into force of the law, the 45-day term being calculated from this moment on. The form, the content and the conditions under which the information will be provided are set out in the draft decision on the information procedure applicable to intermediary service providers, currently under public consultation.

The intermediary services are as follows:

•  mère conduit services: this category includes generic service categories such as internet exchange points, wireless access points, virtual private networks, DNS services and resolvers, TLD name registries, domain registrars, certification authorities issuing digital certificates, VoIP telephony and other interpersonal communications services;
• caching services: this category regards services related to the provision of content distribution networks, reverse proxies or content matching proxies;
• hosting services: regards categories of services such as cloud computing, web hosting, paid referencing services or services enabling the sharing of information and online content, including file storage and sharing.

The DSA establishes, for each category of providers of intermediary services, the conditions under which the respective provider is exempted from liability in relation to the information provided by the recipients of the service.

Providers of hosting services (including the online platform providers) must implement notice and action mechanisms to enable any individual or entity to notify the presence of alleged illegal content on their service. If such notices allow a provider of hosting services to identify the unlawfulness of the relevant activity or information without a detailed legal examination, upon becoming aware of those facts, the provider of hosting services will act promptly to remove or disable the access to the illegal content.

Furthermore, the providers of online platforms must provide the recipients of the services with internal complaint-handling systems regarding the decisions they take in relation to the notifications of allegedly illegal content or content incompatible with their terms and conditions. Following receipt of the order to act against illegal content, the provider of intermediary services is obliged to inform the issuing (relevant) authority about how it complied with that order, and the issuing (relevant) authority has the obligation to provide to ANCOM a copy of the order, together with the provider’s response to the manner in which it followed the order.

Authorities responsible for supervising online content

The law establishes for the relevant authorities (institutions, public authorities with duties related to the supervision of a certain sector or areas of activity or judicial authorities) the possibility to issue orders requiring the provider of intermediary services to act against the online illegal content or to provide certain information.

“Illegal content” means any information which, in itself or by its reference to an activity, including the sale of products or provision of services does not observe the Union Law or the national law of any Member State which is in compliance with Union law, irrespective of the precise subject matter or nature of that law. The activities carried out in the online environment must comply with the national legal rules in force, and the public authorities with competences in supervising certain sectors or areas of activity in the offline environment will also follow the compliance with the rules for events that occurred in the online environment. Briefly, everything that is illegal offline is also illegal online, and the relevant authorities have an important role to play in flagging the online existence of certain content that qualifies as illegal according to the national rules.

Recipients of the intermediary services

The recipients of the intermediary services are any natural or legal persons who use the intermediary service, in particular for the purpose of seeking information or making it accessible. Business users, the consumers, and other users are considered, for the purpose of DSA, recipient of the services.

When the recipient of the intermediary services becomes aware of an illegal content/activity, the first step for the recipient of intermediary services is to notify the provider.

Digital Services Act section

The tasks of the DSC, the obligations of the providers of intermediary services, the rights of the recipients of the services and the rules established by the DSA can be consulted on the page dedicated to digital services on ANCOM’s website, which is constantly updated.