U.S. lawyers advising clients that interact with the European digital market are increasingly encountering the regulatory structure created by the European Union Digital Services Act. The statute does not impose a single set of obligations on every company that sells products or offers services connected to Europe. Instead, it regulates defined categories of intermediary services and assigns duties according to the role a company plays within the digital ecosystem.
Some U.S. companies operate hosting services, online platforms, or online marketplaces and therefore carry direct responsibilities under the Act, while others participate as merchants, advertisers, or rights holders using systems operated by third parties. Understanding this distinction at the outset allows counsel to determine whether the client is a direct duty holder, an indirectly affected commercial participant, or a rights holder seeking enforcement, and it frames how notice procedures, documentation practices, and regulatory oversight will shape intellectual property disputes within the European digital environment.
The European Union Digital Services Act has changed the environment in which online intellectual property disputes occur. For many years lawyers treated online enforcement largely as a private exchange between rights holders and online platforms through notice practice. The Digital Services Act places those same disputes inside a regulatory system that examines how intermediary service providers operate, how decisions are documented, and whether moderation procedures follow defined standards.[1] For U.S. lawyers advising clients that interact with the European digital market, the practical question is not simply whether a company does business in Europe. The starting point is determining whether the client falls within the categories of intermediary services regulated by the statute.
The Digital Services Act applies to defined actors rather than to companies in general. Under Article 3, intermediary services are services that transmit, store, or provide access to information supplied by users, including hosting services, online platforms, and online marketplaces.[2] However, many U.S. businesses interact with the European market without becoming direct duty holders under the Act. In practice, lawyers usually encounter three different client positions. Some clients operate online platforms or hosting services and therefore carry direct statutory obligations. Other clients sell products, advertise, or conduct business through online platforms operated by others. A third group consists of rights holders seeking to remove infringing material or counterfeit listings. Distinguishing among these positions is essential because the legal responsibilities and risk exposure differ significantly.
Clients that operate intermediary services face the most direct regulatory exposure. Their obligations depend on the type of intermediary service they provide and, for the largest services, whether they are designated as “very large online platforms” or “very large online search engines”;[3] in this regard, for instance, the systemic risk governance, mitigation measures, and auditing expectations created by the statute apply specifically to those very large services. For other intermediary service providers, the focus is narrower and centers on procedural compliance, transparency, and cooperation with authorities, but these requirements still affect day-to-day operations.
From a practical enforcement standpoint, one of the most important provisions for lawyers advising both hosting providers (including online platforms) and rights holders is the notice and action procedure. Article 16 establishes the elements that a notice must contain to be treated as sufficiently precise and substantiated.[4] The notice must, inter alia, identify the specific content in question, explain why the material is alleged to be unlawful, and provide contact information for the complaining party. In practice this means that intellectual property complaints sent into the European system must be drafted carefully. Incomplete or vague notices may not trigger the same online platform obligations that lawyers often assume exist under earlier notice-based systems. For this reason, Article 16 provides a direct obligation upon providers of hosting services (including online platforms) to maintain an accessible, user-friendly electronic mechanism designed to facilitate the submission of such sufficiently precise and adequately substantiated notices.
A simple example illustrates how the process operates. A trademark owner identifies a counterfeit product listing on an online marketplace and submits a notice, through the platform’s notice mechanism, identifying the listing, the protected mark, and the reasons why the product is alleged to be illegal. If the notice satisfies Article 16, the online platform evaluates the content and decides whether to remove or restrict it. If the online platform takes such kind of action, the Digital Services Act requires the decision to be explained.
In particular, Article 17 requires a clear and specific statement of reasons when, inter alia, content is removed or restricted.[5] For lawyers advising online platforms, this means moderation decisions should not exist only inside internal dashboards or automated filters. The statement of reason must be capable of explanation and shall at least contain the content required by Article 17(3), including, where the decision is based on the alleged incompatibility of the information with the provider’s terms and conditions, a reference to the relevant contractual ground and an explanation of why the information is considered incompatible with it. This requirement also affects litigation strategy because the record created by the platform may become part of later disputes.
The Act also lays down additional obligations for online platforms, including, inter alia, the requirement under Article 20 to maintain internal complaint handling systems. Article 20 gives users the ability to challenge moderation decisions.[6] As a result, a takedown request may begin a structured review process rather than ending the matter. Lawyers representing rights holders should expect that users may contest removal decisions, while lawyers representing online platforms should ensure that review systems are consistent, documented, and aligned with the requirements of Article 20.
For marketplace operators, the Act lays down additional obligations that are of immediate relevance for intellectual property enforcement. Article 30 introduces trader traceability obligations for online marketplaces.[7] Platforms must, inter alia, collect, retain, and verify identifying information about business sellers. This requirement directly affects how marketplaces onboard merchants and maintain records. From an enforcement perspective it also assists in identifying repeat infringers and tracking sellers engaged in counterfeit activity. Lawyers advising brand owners frequently view this provision as one of the most operationally significant aspects of the statute.
The Digital Services Act also connects intermediary service providers’ governance with European fundamental rights principles. For instance, Article 14 requires intermediary service providers to describe moderation policies in their terms and conditions and to apply restrictions diligently, objectively, and proportionately, with due regard to the rights and legitimate interests of all parties involved, including fundamental rights, such as the freedom of expression, freedom and pluralism of the media, and other fundamental rights and freedoms as enshrined in the Charter of Fundamental Rights of the European Union.[8] This provision creates risk not only when enforcement activity appears inconsistent with the intermediary service provider’s terms and conditions, but also where those rules (or their application in a particular case) are difficult to defend as diligent, objective, proportionate, and compatible with the rights and legitimate interests of the parties involved, including fundamental rights. For example, a removal decision may be difficult to defend if it cannot be tied to the platform’s published terms and conditions, or if those rules (or their applications) are inconsistent with the Act’s legal framework.
Public enforcement is coordinated through national Digital Services Coordinators and the European Commission. These authorities supervise compliance, may require intermediary service providers to supply information about their systems and decisions, and can impose enforcement measures and penalties where violations occur.[9] Lawyers should therefore view intermediary service providers’ governance not only as an internal compliance function but also as a system that public authorities may examine. Thus, intellectual property disputes can trigger broader questions about whether the intermediary service provider’s processes comply with the statute.
U.S. intermediary service providers that are not established in the European Union but offer services to users in the European Union must also address the legal representative requirement in Article 13. Non-European providers must designate a representative within the Union who can receive communications from regulators and coordinate compliance matters.[10] This requirement effectively connects foreign service providers to the European enforcement framework by ensuring an EU-based point of contact, even when their headquarters remain outside the Union.
For practicing lawyers, several practical steps follow from these provisions. Clients operating hosting services should review their notice intake procedures and the way moderation decisions are documented and explained—and, when operating as online platforms, their complaint-handling systems—to ensure they reflect the statutory framework. Online marketplace operators should also confirm that seller verification and recordkeeping systems meet the trader traceability rules. Rights holders should prepare enforcement notices that clearly identify infringing content and provide adequate reasoning. Businesses using third-party platforms should also understand how platform compliance systems may affect listings, account actions, and dispute resolution.
The larger lesson is straightforward. The Digital Services Act has not eliminated traditional intellectual property enforcement strategies, but it has placed them inside a governance structure that public authorities can review. Lawyers advising U.S. companies that interact with the European digital market should focus on how their clients fit within the statute, how intermediary service providers’ processes operate in practice, and whether those processes can withstand regulatory scrutiny.
Conclusion
The Digital Services Act places online intellectual property enforcement inside a defined governance structure rather than leaving it as a private exchange between rights holders and intermediary service providers. In particular, hosting providers must assess legally sufficient notices and explain moderation decisions, online platforms must also maintain internal review systems, and online marketplaces must verify the identity of commercial sellers. Public authorities in the European Union may request information about these processes and evaluate whether intermediary service providers apply their rules consistently and proportionately.
For U.S. lawyers, the central task is determining where a client fits within the statutory framework and advising from that position. This may involve building compliant procedures for intermediary service providers, preparing precise enforcement notices, or advising businesses that depend on third-party platforms. When that role-based analysis is done well, the Digital Services Act becomes a workable structure for managing cross-border intellectual property enforcement with greater clarity and predictability.
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), 2022 O.J. (L 277) 1. This regulation establishes the legal framework governing intermediary services operating in the European Union and introduces transparency, accountability, and procedural obligations for digital service providers. ↑
Id. art. 3. Article 3 provides the statutory definitions used throughout the regulation, including intermediary services, hosting services, and online platforms. These definitions determine whether a service falls within the categories regulated by the Digital Services Act. ↑
Id. art. 33. Article 33 authorizes the designation of very large online platforms and very large online search engines based on the number of active recipients of the service in the European Union. See also id. arts. 34 through 43, which establish the additional obligations imposed on those designated services, including systemic risk assessment, mitigation measures, independent audits, and enhanced transparency requirements. ↑
Id. art. 16. Article 16 establishes the notice and action mechanism for hosting services (including online platforms) and sets out the elements required for a notice to be considered sufficiently precise and adequately substantiated, including identification of the specific information alleged to be illegal and an explanation of the reasons why the notifier alleges that information to be illegal. ↑
Id. art. 17. Article 17 requires hosting and online platforms to provide a statement of reasons whenever they restrict access to or remove information supplied by a recipient of the service, including an explanation of the decision and the legal or policy grounds relied upon. ↑
Id. art. 20. Article 20 requires online platforms to maintain an internal complaint handling system through which users may challenge content moderation decisions and obtain review within the platform’s procedures. ↑
Id. art. 30. Article 30 establishes traceability obligations for traders using online marketplaces and requires marketplaces to collect, verify, and retain identifying information concerning business sellers before allowing them to offer goods or services through the platform. ↑
Id. art. 14. Article 14 requires providers of intermediary services to include information in their terms and conditions regarding content moderation policies, procedures, and tools, and to apply those restrictions in a diligent, objective, and proportionate manner with due regard for the rights and legitimate interests of all parties involved. ↑
Id. arts. 49–51, 56. These provisions establish the supervisory and enforcement structure of the Digital Services Act, including the designation and authority of Digital Services Coordinators in each Member State, investigative and information-gathering powers, coordination among national authorities, and the supervisory role of the European Commission with respect to certain services. ↑
Id. art. 13. Article 13 requires providers of intermediary services that are established outside the European Union but offer services within the Union to designate a legal representative in the European Union who may be addressed by competent authorities and who facilitates regulatory communication and compliance. ↑
