Digital games, a missed target of the Digital Services Act?

Abstract

The EU Digital Services Act (DSA) introduces various protective measures for users of online platforms.

However, its scope is constrained by the definition in Art. 3(i) of the Act, which excludes a wide range

of digital services, including most digital games. Consequently, players, including children, might not

always benefit from the full extent of protection offered by the DSA even though they face comparable risks that the Act aims to address. This paper examines the definition of «online platform» to clarify the specific circumstances under which the rules of Chapter III, Section III of the DSA may apply to digital games. The analysis indicates that, depending on their features, some games may qualify for protection, while others are clearly excluded. Additionally, the applicability of the DSA to a substantial range of games relies largely on regulatory interpretations which creates risk of fragmentation and uncertainty for the gaming sector. As a conclusion, the paper highlights the inconsistency of conditioning the application of Arts. 25-28, 34 and 35 of the DSA to the user’s ability to disseminate information to the public as the principal feature/functionality of the service since such requirement is not correlated with the harms addressed by these provisions