The Digital Constitutionalism of the EU: The Digital Services Act and Its Implications for Korea
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Over the last decade, EU policymakers have initiated important pieces of legislation, including the Digital Services Act (DSA) and the Digital Markets Act (DMA). Among other things, the DSA, known as the digital constitution, is considered to be an essential regulation in the digital economy. Its purpose is to harmonise a legal framework of process for preventing illegal content in the EU. However, its major impact will relate to the complex problems of conflicts between fundamental rights and of competition. The DSA may have notable impacts on the digital economy because they can apply to multinational undertakings under the principle of extraterritorial application. Therefore, Korean enterprises that wish to provide digital services in the EU should consider future compliance costs. There is no doubt that the DSA will become a game-changing law in the global market. It may ensure normative guidance, as a result of the digital constitutionalism, to prohibit illegal content online. Nevertheless, the DSA may have significant shortcomings. First, the obligations to remove and block illegal content under the DSA rules may create notable conflicts with freedom of expression. Second, the obligations in the DSA may cause a problem of an entry barrier to the market. For example, the due diligence obligations of service providers will be significant burdens on multinational firms, including Korean firms. Focusing on the two issues above, this article analyses the substantive provisions in the DSA and describe its implications for Korean policymakers and enterprises. The EU legislature adopted the proposal DSA on the 4th October 2022, and the DSA will enter into force on 16 November 2022 and will be directly applicable possibly from 1 January 2024. Therefore, it is timely to discuss the legal and policy issues involving the DSA.
Abstract
Over the last decade, EU policymakers have initiated important pieces of legislation, including the Digital Services Act (DSA) and the Digital Markets Act (DMA). Among other things, the DSA, known as the digital constitution, is considered to be an essential regulation in the digital economy. Its purpose is to harmonise a legal framework of process for preventing illegal content in the EU. However, its major impact will relate to the complex problems of conflicts between fundamental rights and of competition. The DSA may have notable impacts on the digital economy because they can apply to multinational undertakings under the principle of extraterritorial application. Therefore, Korean enterprises that wish to provide digital services in the EU should consider future compliance costs. There is no doubt that the DSA will become a game-changing law in the global market. It may ensure normative guidance, as a result of the digital constitutionalism, to prohibit illegal content online. Nevertheless, the DSA may have significant shortcomings. First, the obligations to remove and block illegal content under the DSA rules may create notable conflicts with freedom of expression. Second, the obligations in the DSA may cause a problem of an entry barrier to the market. For example, the due diligence obligations of service providers will be significant burdens on multinational firms, including Korean firms. Focusing on the two issues above, this article analyses the substantive provisions in the DSA and describe its implications for Korean policymakers and enterprises. The EU legislature adopted the proposal DSA on the 4th October 2022, and the DSA will enter into force on 16 November 2022 and will be directly applicable possibly from 1 January 2024. Therefore, it is timely to discuss the legal and policy issues involving the DSA.
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