Law no. 12-A/2026 of 15 April was published this Wednesday, ensuring the implementation in Portugal of the Digital Services Act (DSA), a European regulation governing the single market for digital services. This marks the transition from a predominantly European framework to an effective and demanding application at national level.
DSA Supervision in Portugal: The Role of ANACOM, ERC and CNPD
Within this new framework, the National Communications Authority (ANACOM) assumes the role of Digital Services Coordinator, in coordination with the Regulatory Authority for the Media (ERC) and the National Data Protection Commission (CNPD). These entities are now vested with enhanced supervisory, investigative and enforcement powers, bringing the digital sector closer to a regulatory model comparable to that of the financial or telecommunications sectors.
From Compliance to Litigation: Legal Obligations for Digital Platforms under the DSA
The DSA introduces a set of obligations that go far beyond formal compliance requirements. Digital platforms are now required, among other aspects, to:
• Remove illegal content swiftly and effectively;
• Provide user information to competent authorities;
• Comply with strict deadlines and binding orders.
Content Moderation as Legal Risk: The End of Platforms’ Discretion
However, the true impact of this reform lies at a deeper level:
the operational decisions of platforms become subject to legal scrutiny.
Content moderation—traditionally treated as an internal function guided by terms and conditions—can now be assessed in light of legal criteria, including principles such as proportionality, transparency and reasoning.
In practice, this means that decisions to remove, downrank or retain content may be challenged before the courts, exposing platforms to a new form of civil liability.
Content Moderation vs. Censorship: Legal Risks for Digital Platforms under the DSA
The new framework intensifies the tension between two essential considerations:
• On the one hand, the obligation to remove illegal content; and
• On the other, the risk of unduly restricting freedom of expression.
This tension opens the door to litigation concerning alleged “private censorship”, particularly where political, journalistic or opinion-based content is concerned.
The absence of clear criteria or inconsistent decision-making may be decisive in establishing platform liability, especially where the following can be demonstrated:
• Arbitrary application of internal policies;
• Lack of reasoning in decisions;
• Unequal treatment of similar content.
Key Areas of Litigation Risk for Digital Platforms under the DSA
The application of the DSA is expected to result in a significant increase in litigation, particularly in matters such as:
• Judicial review of content moderation decisions;
• Liability for failure or delay in removing illegal content;
• Enforcement proceedings initiated by regulatory authorities;
• Conflicts between transparency obligations and data protection requirements.
DSA and GDPR: Risks in Data Sharing and Automated Decision-Making
Furthermore, the interplay with the General Data Protection Regulation (GDPR) raises particularly sensitive issues, notably with regard to the sharing of user data and the lawfulness of processing underlying automated decision-making.
The Impact of the DSA on Digital Businesses: Financial, Operational and Reputational Risks
Fines may reach up to 6% of annual worldwide turnover, aligning with the highest sanctioning thresholds under European law.
However, the risk for companies is not merely financial, but manifests across several dimensions:
• Reputational risk, arising from public exposure of controversial decisions;
• Operational risk, associated with the need to respond within short timeframes;
• Evidentiary risk, linked to the obligation to demonstrate, ex post, the legality and adequacy of decisions taken.
In this context, the absence of robust internal processes may, in itself, constitute a source of liability.
DSA Compliance: How to Reduce Legal Risk for Digital Platforms
At this stage, it is no longer sufficient to have well-drafted moderation policies published on a website.
Companies must be able to demonstrate, in a consistent and documented manner:
• How content is assessed;
• Which criteria are applied;
• How consistency in decision-making is ensured;
• Which appeal mechanisms are made available to users.
This entails the implementation of internal systems integrating legal, technological and operational components, from decision-making workflows to audit and record-keeping mechanisms.
DSA in Portugal: Why Preventive Legal Advice Is Now Essential for Digital Platforms
In summary, the DSA marks a structural shift in the way digital platforms operate and are held accountable.
For digital operators, this is the time to:
• Reassess internal procedures;
• Test response mechanisms to regulatory requests;
• Strengthen documentation and evidentiary capacity;
• Anticipate litigation scenarios.
A purely reactive approach is likely to prove insufficient. Preventive, integrated and risk-oriented legal advice will be key to mitigating regulatory exposure and ensuring the sustainability of business activities in an increasingly demanding environment.
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The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.