Legal regulation of digital services in the EU: defining the material scope

The article examines the challenges of defining the material scope of the legal regulation of digital services in the European Union by distinguishing between digital content and digital services and comparing related concepts established in EU law. Formal legal, comparative legal and systemic methods are applied. The relationships between digital services, information society services, intermediary services, electronic communications services and audiovisual media services are analysed. It is established that distinguishing digital content from digital services requires an examination of the substance of the provider’s obligations concerning the supply of content and the provision of functionalities for working with data. The possibility of combining these obligations within a single contract is demonstrated. The auxiliary role of the duration and periodicity of supply in distinguishing between content and services is substantiated. The consumer-contractual scope of the definition of a digital service in Directive (EU) 2019/770 is clarified. Different types of relationships between legal categories of digital services are identified. Certain concepts are related as general and specific categories. At the same time, a single service may fall within the scope of different legal acts governing distinct aspects of its provision. It is also shown that the extent of a provider’s obligations may depend on the scale of use of the service. The role of dissemination of information to the public in legal classification is examined using hosting services and online platforms as examples. A comparison of audiovisual media services and video-sharing platform services highlights the role of the provider’s editorial responsibility. The relationship between the general requirements of the DSA and the specific rules of Regulation (EU) 2021/784 concerning the removal of terrorist content is examined. It is substantiated that the classification of a single service under several legal categories reflects different aspects of its regulation. The applicability of the proposed criteria for the legal classification of digital services to determining the requirements governing their provision under Ukrainian legislation is demonstrated.