Digital Services Act governance in Portugal

Governance provisions in the DSA

The objective of the Digital Services Act (DSA, Regulation (UE) 2022/2065 of 19 October 2022)[1] is to contribute to the proper functioning of the internal market for intermediary services by establishing harmonised rules for a safe, predictable, and reliable online environment that fosters innovation and in which fundamental rights, including the principle of consumer protection, are effectively safeguarded. To achieve its objectives, a well-functioning governance structure must be established. Contrary to the DMA, whose governance is centred on the EU Commission, the DSA will mostly be governed at the Member State level (except for the supervision and enforcement of the provisions specific to Very Large Online Platforms and Search Engines (VLOPS and VLOSES), which is concentrated at the EU Commission).

The DSA entered into force in August 2023 for VLOPS and VLOSES, and for all other intermediary service providers on 17 February 2024. By the latter date, all Member States had to designate a competent authority as Digital Service Coordinator (DSC).

So, what does the DSC do? By Article 49 of the DSA, each Member State designates one or more Competent Authorities to supervise intermediary platforms and enforce the DSA, denoting one as the Digital Services Coordinator (DSC). The DSC coordinates the work of the different Competent Authorities in a Member State, and cooperates with the DSCs of other Member States, the European Board for Digital Services, and the European Commission. The DSC is also responsible for all supervision and enforcement tasks not explicitly given to another Competent Authority, such as granting the status of “trusted flaggers” and “vetted researchers,” as well as certifying out-of-court dispute settlement bodies.

The Implementation Process in Portugal

The Portuguese Government approved Decree-Law 20-B/2024 of 16 February on February 8^th, just before the deadline (the “official” date refers to the publication in the Official Journal), which designed the electronic communications regulator ANACOM as DSC.[2] Yet, on April 24^th the European Commission opened an infringement procedure against Portugal (among other four countries) and sent a letter of formal notice (INFR(2024)2038) indicating that ANACOM, though already denominated as DSC, had not received the necessary enforcement powers, including the definition of the sanctions regime. It reiterated its request by sending a Reasoned Opinion on October 3^rd, giving Portugal two months before it would be referred to the European Court of Justice for failing to fully implement the DSA.

How to explain the delay? One important reason may have been that the Portuguese government fell in late 2023, stalling legislative work until after the elections of March 2024. As mentioned, the outgoing government in February still managed to denominate ANACOM as the DSC, being the obvious choice. It also denominated two further competent authorities: the media regulator (Entidade Reguladora para a Comunicação Social, ERC)[3] for the media sector and the General Inspectorate of Cultural Activities (Inspeção-Geral das Atividades Culturais, IGAC)[4] for copyright issues.

ANACOM assembled a Digital Services working group[5] under its Deputy Director-General Luís Correia and made up of representatives of 32 public organizations. By the end of April, it produced a report recommending the regulatory structure, the coordination between competent authorities, the enforcement regime, and the financing mechanism. It also included a proposal of legislation to implement the DSA in Portugal. This report was presented to the Ministries of Infrastructure, Culture, and Parliamentary Affairs, the latter being responsible for the media sector.

In late October, the Government approved a proposal of the law implementing the DSA and empowering ANACOM, ERC and IGAC with their respective competencies and sanctions regimes and sent it to Parliament. The latter approved the law on December 12^th, but until the time of writing (end of January 2025) it was not published in the Official Journal and as such has not yet come into effect.

Institutional Implications

Apart from taking on the coordination between the various competent authorities, ANACOM is tasked with the identification and supervision of digital platforms (including VLOPS/VLOSES). It is expected that for this function an additional 15-20 experts will be hired, including in AI, cybersecurity, and data science.

ANACOM will also be dealing with the complaints process under the DSA. Given the expected large number of complaints (the European Commission predicted up to 100 thousand complaints per year in all Member States), additional employees and technological means will be needed, though it is hard to see how thousands of complaints could be dealt with unless the whole process is highly automated. The first cases are already being followed up, on issues such as account blockages and the lack of communication channels with the platforms, but also complaints related, among others, to illegal content, lack of transparency, and the protection of minors.

Lastly, ANACOM will embark on a campaign of educating citizens and public entities, informing them about their rights and how to deal with illegal content and misinformation.

Independently of the exact attribution of responsibilities, it is clear that ANACOM’s involvement in the implementation of DSA (and the upcoming implementation of the AI Act!) will create a fundamental reorientation from spectrum management and (wholesale broadband) telecoms regulation towards being a fully-fledged regulatory entity for the Digital Economy, with a much more active role in market supervision and interactions with other authorities and the public in general.

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32022R2065.

[2] https://www.anacom.pt/render.jsp?categoryId=431204.

[3] https://www.erc.pt/en.

[4] https://www.igac.gov.pt (Portuguese only).

[5] As determined in Order 1747/2024, de 15 de Fevereiro (https://diariodarepublica.pt/dr/detalhe/despacho/1747-2024-852762925).