20.10.2023

ANCOM and the Ministry for Research, Innovation and Digitalisation launch for public consultation the draft law establishing the national legislative measures necessary for the application of the provisions of Regulation (EU) 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 (Digital Services Act - DSA) in Romania, a legislative act that is binding for the Member States. According to European provisions, the DSA will apply in all EU Member States from 17 February 2024.

The overall objective of the DSA is to strengthen the Digital Single Market by establishing a modern legal framework for digital services and ensuring that digital service providers in the European Union act responsibly to mitigate risks arising from the use of their services, taking into account the European Union values and protecting fundamental rights.

Main provisions of the draft law

The purpose of the draft law is to lay down the necessary measures for the implementation of the DSA, to designate the Digital Services Coordinator and to adopt the sanctioning regime applicable in case of non-compliance with the obligations established by the DSA or by law.

Digital Services Coordinator

The draft law designates ANCOM as a Digital Services Coordinator, the Authority being thus responsible for all aspects related to the supervision and observance of the Regulation by providers of intermediary services. In this capacity, the institution 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 will also be 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. In applying the national rule, ANCOM, as a Digital Services Coordinator, will also adopt secondary legislation (decisions of the institution).

Authorities responsible for supervising online content

The draft normative act establishes the possibility for relevant authorities (institutions, public  authorities with duties regarding the supervision of a certain sector or field of activity, or judicial authorities) to issue orders requiring the provider of intermediary services to act against illegal content in the online environment or to provide certain information. 'Illegal content' means any information which, in itself or in relation to an activity, including the sale of products or the provision of services, does not comply with the Union law or with the law of any Member State that is in conformity with Union law, irrespective of the particular subject matter or nature of that law. The activities carried out in the online environment must comply with the national legal norms in force, the public authorities with competences in supervising certain sectors or areas of activity in the offline environment having to watch the compliance with the rules for infringements occurred in the virtual environment (online), as well. Briefly, everything that is illegal offline is also illegal online.

Providers of intermediary services

A provider of intermediary services established in Romania has the obligation to send ANCOM, within 45 days from the date of starting the provision of services, a notification in this regard, including information on the provider's identification data and contact details for the efficient communication with the public institutions or authorities, and announcing any changes thereto. For these communications between ANCOM and the providers, the "My ANCOM" service has been made available free of charge.

The providers of intermediary services are:

• mère conduit service providers: 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 providers: this category regards only services related to the provision of content distribution networks, reverse proxies or content matching proxies;
• Hosting providers: this category 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.

Hosting (cloud or webhosting) providers and online platforms must implement notice-and-action mechanisms to enable third parties to flag the presence of alleged illegal content. Also, they must provide the user with internal complaint-handling systems regarding the decisions they take in relation to allegedly illegal content or to 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 relevant authorities about how it complied with that order, and the issuing (relevant) authority has the obligation to inform ANCOM about how the order was implemented. Where providers do not enforce removal orders received from relevant authorities, the Authority may step in.

Public consultation process

The draft law establishing measures for the Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19th of October 2022 on a single market for digital services and amending Directive 2000/31/EC, and amending and supplementing Law no. 365/2002 on electronic commerce, republished is available, in Romanian, here. Comments and proposals can be submitted until 31.10.2023, at the ANCOM headquarters (2 Delea Noua Street, sector 3, Bucharest),  through the Online Registry or through the Regional Divisions of the Authority. Comments can also be sent by fax to +40 372 845 402 or by e-mail to consultare@ancom.ro.