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.<\/p>\n
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.<\/p>\n
The DSA introduces a set of obligations that go far beyond formal compliance requirements. Digital platforms are now required, among other aspects, to:
\u2022 Remove illegal content swiftly and effectively;
\u2022 Provide user information to competent authorities;
\u2022 Comply with strict deadlines and binding orders.<\/p>\n
However, the true impact of this reform lies at a deeper level:
the operational decisions of platforms become subject to legal scrutiny.<\/p>\n
Content moderation\u2014traditionally treated as an internal function guided by terms and conditions\u2014can now be assessed in light of legal criteria, including principles such as proportionality, transparency and reasoning.<\/p>\n
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.<\/p>\n
The new framework intensifies the tension between two essential considerations:
\u2022 On the one hand, the obligation to remove illegal content; and
\u2022 On the other, the risk of unduly restricting freedom of expression.<\/p>\n
This tension opens the door to litigation concerning alleged \u201cprivate censorship\u201d, particularly where political, journalistic or opinion-based content is concerned.<\/p>\n
The absence of clear criteria or inconsistent decision-making may be decisive in establishing platform liability, especially where the following can be demonstrated:
\u2022 Arbitrary application of internal policies;
\u2022 Lack of reasoning in decisions;
\u2022 Unequal treatment of similar content.<\/p>\n
The application of the DSA is expected to result in a significant increase in litigation, particularly in matters such as:
\u2022 Judicial review of content moderation decisions;
\u2022 Liability for failure or delay in removing illegal content;
\u2022 Enforcement proceedings initiated by regulatory authorities;
\u2022 Conflicts between transparency obligations and data protection requirements.<\/p>\n
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.<\/p>\n
Fines may reach up to 6% of annual worldwide turnover, aligning with the highest sanctioning thresholds under European law.<\/p>\n
However, the risk for companies is not merely financial, but manifests across several dimensions:
\u2022 Reputational risk, arising from public exposure of controversial decisions;
\u2022 Operational risk, associated with the need to respond within short timeframes;
\u2022 Evidentiary risk, linked to the obligation to demonstrate, ex post, the legality and adequacy of decisions taken.<\/p>\n
In this context, the absence of robust internal processes may, in itself, constitute a source of liability.<\/p>\n
At this stage, it is no longer sufficient to have well-drafted moderation policies published on a website.<\/p>\n
Companies must be able to demonstrate, in a consistent and documented manner:
\u2022 How content is assessed;
\u2022 Which criteria are applied;
\u2022 How consistency in decision-making is ensured;
\u2022 Which appeal mechanisms are made available to users.<\/p>\n
This entails the implementation of internal systems integrating legal, technological and operational components, from decision-making workflows to audit and record-keeping mechanisms.<\/p>\n
In summary, the DSA marks a structural shift in the way digital platforms operate and are held accountable.<\/p>\n
For digital operators, this is the time to:
\u2022 Reassess internal procedures;
\u2022 Test response mechanisms to regulatory requests;
\u2022 Strengthen documentation and evidentiary capacity;
\u2022 Anticipate litigation scenarios.<\/p>\n
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.<\/p>\n