Comparison Between The Digital Services Act And The Online Safety Act 2023

• Published date: 05 February 2024
• Subject Matter: Media, Telecoms, IT, Entertainment, IT and Internet, Advertising, Marketing & Branding
• Law Firm: Lewis Silkin
• Author: Mr Nick Allan and Geraint Lloyd-Taylor

The Online Safety Act recently received Royal Assent and is likely to come into force late next year. The Digital Services Act comes into force in EU member states, as well as the EEA in early 2024. How do these regimes overlap and differ and how can UK companies comply with both (particularly when many may think they are not in scope for the DSA, but they may well be)?

In addition, we don't yet know the full picture under the OSA as many of the detailed requirements of the Online Safety Act will be set out in secondary legislation and Ofcom codes of practice – Ofcom is consulting on these in three phases and began the first phase on 9 November 2023. However, the following table aims to provide a useful overview of the key requirements.

The comparison covers the follow questions:

1. Who comes within scope of each piece of legislation?

2. What content is covered?

3. What are the duties around risk assessments?

4. What other duties fall on in-scope services?

5. What does the legislation say about freedom of speech?

6. How are the two pieces of legislation going to be enforced?

7. How does the legislation affect advertising?

8. What else do I need to know about the two piece of legislation?

	Digital Services Act	Online Safety Act
Who comes within scope of each piece of legislation?	The DSA governs intermediary services provided to service recipients (whether businesses or consumers) established or resident in an EU member state, irrespective of where the service provider is established. Intermediary services include mere conduit services, caching services and hosting services. Micro and small businesses are exempt from some requirements and will have more time than larger organisations to implement the other requirements.	Providers of regulated services which include user-to-user and search services and pornographic services. A user-to-user service means an internet service that allows content generated directly on the service, or uploaded to or shared on the service, by a user, to be encountered by another user, or other users. A search service is a service that is or includes a search engine. If outside the UK, services are in scope if they target UK users or have a significant number of UK users. Certain services are exempt, such as providers of certain communication services (e.g., emails, SMS and MMS services) and providers of education or childcare.
	Very large online platforms (VLOPs) and very large online search engines (VLOSEs) have the most obligations. Every six months, online platforms must report on their average monthly active service recipients, so that the European Commission can assess if they should be designated a VLOP or VLOSE. The European Commission has designated some platforms as VLOPs or VLOSEs, including among others Instagram, Facebook, Google Play, Google Maps, X/Twitter, LinkedIn, Wikipedia, Bing and Google Search.	Services are categorised. Category 1 services have additional duties compared to Category 2 services. Whether a service is a Category 1 or Category 2 service will depend on whether they reach "threshold conditions". These will be set out in secondary legislation. Category 1 services are intended to be the larger, more popular sites, that is, those with a higher number of users. Functionality will also be relevant. Ofcom has consulted on how to categorise providers so that it can advise government. It has asked how platforms measure user numbers on different parts of their services.
What content is covered?	"Illegal content" is information which is itself illegal or relates to an illegal activity. Examples include the sharing of images depicting child sexual abuse, the sale of products or the provision of services in breach of consumer protection law, and the illegal sale of live animals. Legal but harmful content (for example, relating to bullying or self-harm) is not defined, nor subject to obligations to remove.	Illegal content is content that amounts to an offence specified in one of the schedules, as follows: A terrorism...